                                                                                         11/15/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                October 2, 2018 Session

                      JOE KING v. STATE OF TENNESSEE

                Appeal from the Chancery Court for Grundy County
                    No. 6505     Jeffrey F. Stewart, Chancellor

                       ___________________________________

                           No. M2018-00572-COA-R3-CV
                       ___________________________________


The petitioner was convicted of rape in 1988, served a six month sentence of
incarceration, and successfully completed five and a half years of probation; in 2016 he
was advised that he was required to register as a sex offender. After registering, he filed
a petition for declaratory judgment, challenging the constitutionality of the Tennessee
Sex Offender Registration and Monitoring Act of 2004, as written and as applied to him,
and requested that he not be required to register as a sex offender. The court dismissed
the action for failure to state a claim, and the petitioner appeals. Upon our de novo
review, we reverse the dismissal of his as-applied challenge to the Act and remand the
case for further proceedings; in all other respects, we affirm the judgment of the trial
court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed
                  in Part and Affirmed in Part; Cause Remanded

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.

Paul D. Cross and Howell G. Clements, Monteagle, Tennessee, for the appellant, Joe
King.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein,
Solicitor General; and Dianna Baker Shew, Assistant Attorney General, for the appellee,
State of Tennessee - Civil.
                                              OPINION

        I. FACTUAL AND PROCEDURAL BACKGROUND

        Joe King was convicted by a jury in February 1988 of the felony offense of rape;
he was sentenced to six years imprisonment and served six months in jail with the
balance served on probation. In 1994, the Tennessee Legislature enacted Public Chapter
976, sections 1-9, codified at Tennessee Code Annotated section 40-39-101, which was
known as “The Sexual Offender Monitoring and Registration Act” (“The 1994 Act”).
The 1994 Act created a sex offender registry (“SOR”) and established a ten-year
registration period for persons convicted of certain offenses. See 1994 Tenn. Laws Pub.
Ch. 976. The 1994 Act was amended on numerous occasions, and in 2000, it was
amended to provide for lifetime registration for violent sexual offenders. The 1994 Act
was repealed and replaced in 2004 by Public Chapter 921, which created the Tennessee
Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking
Act of 2004 (“the Act”), codified at section 40-39-201, et. seq. Due to his conviction for
rape, which is defined as a “violent sexual offense” in section 40-39-202, Mr. King is
subject to lifetime registration on the sex offender registry, pursuant to section 40-39-
207(g), and other work and residential restrictions, pursuant to section 40-39-211.

       Mr. King registered as a sex offender in March of 2016 and filed this action on
May 17, 2016, seeking a declaration that he was not required to register as a sexual
offender and was not required to move out of his home where his minor child lived. In
his petition, he alleged that had never been informed that he had to register as a sex
offender and that:

               Some time after the first of 2016, apparently an anonymous source
        notified the state that the Plaintiff had not registered under the Tennessee
        sexual offender and violent sexual offender registration verification and
        tracking act.

              The Plaintiff was advised recently by the state that he had to register,
        move out of his home occupied by the Plaintiff, his wife and children in
        which he had been living for more than 30 years.

Mr. King asserted that the registration requirements and the work and residential
restrictions imposed by the Act violated the ex post facto and due process provisions of
the state and federal constitutions.1 He raised both facial and as-applied challenges to the
1
  He also alleged that the Act was unconstitutional on the grounds of “laches – due process – protected
class and equitable estoppel” and “unconstitutional vagueness.” He did not elaborate on these challenges
in any amendments to the petition. The trial court did not specifically rule on these claims, and Mr. King
does not raise them as an issue on appeal. We accordingly affirm the dismissal of those claims.

                                                    2
Act.2 Mr. King filed two motions to amend his petition; in these motions, he sought to
add the Tennessee Bureau of Investigation and its Chairman as defendants and to add an
allegation that the Act delegated judicial authority to the TBI in violation of the
separation of powers clause of the Tennessee Constitution.

       In due course, the State of Tennessee moved to dismiss the petition, asserting that
the Court did not have subject matter jurisdiction over the as-applied constitutional
challenge to the Act inasmuch as Mr. King had not exhausted available administrative
remedies with the Tennessee Bureau of Investigation (“TBI”) pursuant to Tennessee
Code Annotated sections 4-5-223(a), -224(b); that the State should be dismissed due to its
sovereign immunity; and that the petition “fail[ed] to establish standing to challenge
portions of the statute.”

       The court held a hearing on the motion to dismiss, issued an oral ruling, and
subsequently entered an order placing the case on the retired docket in order to permit
Mr. King to “pursue his declaratory action [to be removed from the sex offender registry]
at the agency level under the Uniform Administrative Procedures Act (‘UAPA’) before
bringing the constitutional challenge otherwise.”

        Mr. King then sought a declaratory order from the TBI that he did not have to
register and requested termination from the Sex Offender Registry. The TBI issued two
letters to Mr. King; the first stated, “We have received and reviewed your Petition for
Declaratory Order …. Pursuant to Tennessee Code Annotated § 4[]-5-225(b) TBI
declines to issue a declaratory order in this case.” The second letter stated in pertinent
part:

                The Tennessee Bureau of Investigation is in receipt of your recent
        letter requesting termination from the Sex Offender Registry. Our records
        indicate that you are registered as a violent sex offender for your conviction
        of RAPE. Said conviction is considered a sexually violent offense as
        defined in T.C.A. [§] 40-39-202(28). Tennessee Code Annotated, [section]
        40-39-207(g)(1)(B) states that a person required to register shall continue to
        comply with the registration and quarterly monitoring requirements for the
        life of that person if that person has been convicted of a sexually violent
        offense. Therefore, you will not be eligible for removal from the Sex
        Offender Registry and must continue to register for life while living in
        Tennessee. Unless your conviction is overturned or you receive exoneration
2
 “A facial challenge essentially ‘involves a claim that the statute fails an applicable constitutional test and
should be found invalid in all applications.’” Doe v. Cooper, No. M2009-00915-COA-R3-CV, 2010 WL
2730583, at *3 (Tenn. Ct. App. July 9, 2010). An as-applied challenge “presumes that the statute is
generally valid . . . [but] asserts that specific applications of the statute are unconstitutional.” Waters v.
Farr, 291 S.W.3d 873, 923 (Tenn. 2009).

                                                      3
        for your sexual conviction, the TBI will not respond to any further requests
        for termination that you might make.

On April 25, Mr. King filed a “Notice of Appeal to Chancery Court” with the TBI and a
motion in the trial court requesting:

        . . . a hearing, with full opportunity to expand the record and consider all
        pleadings heretofore filed, with opportunity to develop the record to
        support all the arguments raised. If the Court should consider that such a
        record must be generated at the agency level, Movant requests an order
        from this Court remanding the case to that agency with instructions to
        conduct a hearing permitting proof and other evidence and development as
        to all issues which had been raised by the pleadings in this cause.

        The State then moved to dismiss the action a second time, asserting that it was
moot inasmuch as the harm which Mr. King alleged, i.e., the limitations on his ability to
live in the same house as his son, had been cured when the trial court relieved his son of
the disability of minority.3 The State also contended that the petition should be dismissed
for lack of subject matter jurisdiction, lack of standing, and failure to state a claim.

       Mr. King moved to amend the petition a third time, seeking to add the following
allegations of harm:

               No one notified him of the requirement to register until early 2016.
        By then, all of his children from his second marriage had attained
        adulthood except for a 17 year old son. . . . Per the terms of TCA 40-39-
        211(c)(2), he had been required to set up a separate residence, destroying
        the father-son bond and effectively separating him from his wife and
        grandchildren as well.

                ***

                [S]ubstantial additional punitive effects remain: Mr. King cannot
        interact normally as a family member or as a citizen. Countless examples
        exist; to name a few: a person on the sex offender registry is not permitted
        to attend a high school graduation without written consent from the
        principal. [Name redacted], Petitioner’s son, was scheduled to and did
        graduate from Grundy County High School in May of 2017. A written

3
 The State’s motion stated that the trial court “relieved Plaintiff’s child of the disability of minority via
order dated September 16, 2016.” That order does not appear in the record on appeal. In one of the
amendments, Mr. King alleged that the child was no longer a minor.

                                                     4
        request was made to the principal of that school. The principal deferred to
        the county superintendent of education who eventually authorized the
        principal to let Petitioner attend, but only with a police escort.

                Petitioner and his son considered this to be so humiliating and
        degrading that he decided not to attend, and his son almost decided to skip
        his own high school graduation in solidarity with his father. Petitioner’s
        relationships with his numerous grandchildren have been severely curtailed.
        He has been forced to miss their birthday parties, and he cannot take them
        on outings of any sort without an escort. He cannot attend their school,
        sports, or other extracurricular activities. A daughter-in-law died from
        cancer; he was forced to avoid some of the functions which attend a family
        death due to the presence of children, including the children of the deceased
        daughter-in-law and Petitioner’s son. Petitioner’s health problems,
        particularly his diabetes[,] took a drastic turn for the worse due to the stress
        of being placed on the sex offender registry and its attendant restrictions.
        He and his family members suffer near daily humiliation when an
        acquaintance peruses any of various smart-phone apps and discover that he
        is on the registry. He cannot join in for the family vacations.

                Given the length of time since the 1988 conviction and the absence
        in the intervening years of even a suggestion of any type of impropriety, not
        just sexual, even a cold statistical analysis would indicate that his risk for
        recidivism is close to zero.

       Following a hearing on August 31, 2017, the trial court entered an order on
February 20, 2018, granting the three motions to amend the petition and granting the
State’s motion to dismiss for failure to state a claim.4 Mr. King appeals the dismissal of
his petition.



4
  After the August 31 hearing but before the order was entered, Mr. King filed a pleading styled “Motion
to Amend Complaint to Add Additional Factual Background to Buttress “Punishment” Aspect of Ex Post
Facto Factor . . .” which contains many of the same factual allegations as the motions to amend Mr. King
had previously filed. Although titled a motion to amend complaint, the pleading states that it is “a long
brief that covers the entire Tennessee Act that in counsel’s opinion is both ambiguous, vague, technical
and unconstitutional as it covers everything from where you reside to internet access.” Counsel
acknowledges that he has “plagiarized in total parts of [a brief submitted by one of the parties in Doe v.
Snyder, 834 F. 3d 696 (6th Cir. 2016)], as counsel cannot improve on the research, writing, and expert
testimony on statutes, recidivism, and danger to the public.” To the extent that this pleading could be
considered as a motion to amend, the trial court did not rule on the motion, and Mr. King does not assign
error in that regard. We have reviewed the pleading and conclude that it is simply an argument of matters
raised in the original petition and prior amendments and does not amend the petition in any substantive
regard.
                                                    5
      II. STANDARD OF REVIEW

      The standard to be applied in ruling upon, and in reviewing, a motion to dismiss
was set out in Phillips v. Montgomery County:

              A motion to dismiss based upon Tennessee Rule of Civil Procedure
      12.02(6) requires a court to determine if the pleadings state a claim upon
      which relief may be granted. Tenn. R. Civ. P. 12.02(6); Cullum v. McCool,
      432 S.W.3d 829, 832 (Tenn. 2013). A Rule 12.02(6) motion challenges
      “only the legal sufficiency of the complaint, not the strength of the
      plaintiff’s proof or evidence.” Webb v. Nashville Area Habitat for
      Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011). A defendant filing a
      motion to dismiss “admits the truth of all the relevant and material
      allegations contained in the complaint, but ... asserts that the allegations fail
      to establish a cause of action.” Id. (quoting Brown v. Tenn. Title Loans,
      Inc., 328 S.W.3d 850, 854 (Tenn. 2010)) (alteration in original) (internal
      quotation marks omitted). The resolution of such a motion is determined by
      examining the pleadings alone. Id.

              In adjudicating such motions, courts “must construe the complaint
      liberally, presuming all factual allegations to be true and giving the plaintiff
      the benefit of all reasonable inferences.” Id. (quoting Tigg v. Pirelli Tire
      Corp., 232 S.W.3d 28, 31–32 (Tenn. 2007)); Cullum, 432 S.W.3d at 832. A
      motion to dismiss should be granted only if it appears that “‘the plaintiff
      can prove no set of facts in support of the claim that would entitle the
      plaintiff to relief.’” Webb, 346 S.W.3d at 426 (quoting Crews v. Buckman
      Labs. Int’l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002)). Tennessee
      jurisprudence on this issue “reflects the principle that this stage of the
      proceedings is particularly ill-suited for an evaluation of the likelihood of
      success on the merits....” Cullum, 432 S.W.3d at 832 (quoting Webb, 346
      S.W.3d at 437). We review a lower court’s decision on such a motion de
      novo without any presumption of correctness. Id.

442 S.W.3d 233, 237 (Tenn. 2014).

      III. DISCUSSION

      A. Whether the Act Violates the United States and Tennessee Constitutions’
         Prohibitions on Ex Post Facto Laws

      Ex post facto laws are forbidden by the constitutions of the United States and of


                                             6
Tennessee. U.S. Const. art. I, § 10, cl. 1; Tenn. Const. Art. I, § 11.5 “[T]o fall within the
ex post facto prohibition, a law must be retrospective—that is, ‘it must apply to events
occurring before its enactment’—and it ‘must disadvantage the offender affected by it,’ ...
by altering the definition of criminal conduct or increasing the punishment for the crime
....” State v. Pruitt, 510 S.W.3d 398, 416-17 (Tenn. 2016) (quoting Lynce v. Mathis, 519
U.S. 433, 441 (1997)).

       Mr. King challenges the constitutionality of the Act on ex post facto grounds both
as written and as applied. “A facial challenge to a statute is the most difficult type of
challenge to make as the ‘presumption of a statute’s constitutionality applies with even
greater force when a facial challenge is made’[; t]hus, plaintiff bears the burden of
showing that ‘no set of circumstances exists under which the statute would be valid.’”
Doe v. Gwyn, No. E2010-01234-COA-R3-CV, 2011 WL 1344996, at *9 (Tenn. Ct. App.
Apr. 8, 2011) (quoting Waters v. Farr, 291 S.W.3d 873, 921 (Tenn. 2009)).

       We observe that the Act has been upheld in numerous ex post facto challenges.
“To date, every ex post facto challenge of Tennessee’s statutory scheme requiring
persons classified as sexual offenders to register with the TBI sex offender registry has
been rejected.” Livingston v. State, No. M2009-01900-COA-R3-CV, 2010 WL 3928634,
at *6 (Tenn. Ct. App. Oct. 6, 2010) (citing Doe v. Cooper, No. M2009-00915-COA-R3-
CV, 2010 WL 2730583 (July 9, 2010)). The United States Supreme Court, the United
States Court of Appeals for the Sixth Circuit, and both the Tennessee Court of Appeals
and the Tennessee Court of Criminal Appeals have upheld Tennessee’s sex offender
registry laws against ex post facto challenges. Cooper, 2010 WL 2730583, at *7 (citing
Smith v. Doe, 538 U.S. 84 (2003); Conn. Dept. of Public Safety v. Doe, 538 U.S. 1
(2003); Doe v. Bredesen, No. 3:04-CV-566, 2006 WL 849849 (E.D. Tenn. Mar. 28,
2006), aff’d 507 F.3d 998 (6th Cir. 2007), pet. cert. denied, 555 U.S. 921 (2008);
Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999); Strain v. Tennessee Bureau of
Investigation, No. M2007-01621-COA-R3-CV, 2009 WL 137210 (Tenn. Ct. App. Jan.
20, 2009); State v. Gibson, No. E2003-02102-CCA-R3-CD, 2004 WL 2827000 (Tenn.
Crim. App. Dec. 9, 2004).



5
    The Tennessee Supreme Court observed in State v. Pruitt:

          Article 1, section 10, clause 1 [of the U.S. Constitution] provides that “[n]o State shall ...
          pass any ... ex post facto Law.” The Tennessee Constitution in Article 1, section 11
          states, “That laws made for the punishment of acts committed previous to the existence of
          such laws, and by them only declared criminal, are contrary to the principles of a free
          Government; wherefore no Ex post facto law shall be made.”

510 S.W.3d 398, 410 (Tenn. 2016). The Court went on to hold “that the ex post facto clause of the
Tennessee Constitution has the same definition and scope as the federal clause.” Id. at 416.

                                                        7
       In his brief on appeal, Mr. King has not identified a specific factual allegation that
the Act is unconstitutional on its face; pertinent to this issue is the following statement
contained as part of the prayer for relief in his motion to amend his petition:

              Plaintiff seeks to add a further demand for judgment to read as
       follows: That this Court hold that the residential and work restrictions
       statutes set forth in TCA 40-39-211 along with the registration
       requirements of TCA 40-39-201 et seq., especially 40-39-203 are facially in
       violation of the ex post facto and due process clauses of the state and U.S.
       Constitutions in failing to provide adequate procedures for the
       determination of whether or not their effect is punishment.

        As noted earlier, in ruling on a motion to dismiss, the court is obliged to construe
the complaint liberally and give the petitioner the benefit of all reasonable inferences; we
have no such obligation where the allegations upon which the claim is based are
conclusory. Kincaid v. SouthTrust Bank, 221 S.W.3d 32, 40 (Tenn. Ct. App. 2006)
(citing Riggs v. Burson, 941 S.W.2d 44, 48 (Tenn. 1997) (“Although we are required to
construe the factual allegations in Plaintiff[’s] favor, and therefore accept the allegations
of fact as true, we are not required to give the same deference to conclusory
allegations.”). Mr. King’s conclusory allegation, that the registration requirements and
work restrictions are facially unconstitutional because they “fail[] to provide adequate
procedures for the determination of whether or not their effect is punishment,” simply
does not allege facts; it is only a legal argument. Upon our de novo review, we conclude
that the motion to dismiss was properly granted with respect to Mr. King’s challenge that
the Act, as written, violated the ex post facto provisions of the U.S. and Tennessee
constitutions. We proceed to consider whether the amended petition alleged sufficient
facts to state a claim that the Act is an unconstitutional ex post facto law as applied to Mr.
King.

        In Smith v. Doe, the U.S. Supreme Court considered an ex post facto challenge that
the registration requirements in Alaska’s sex offender registration act, as applied to the
plaintiffs in that case, constituted retroactive punishment in violation of the ex post facto
clause; the Court established a two-prong framework for the analysis:

              We must ascertain whether the legislature meant the statute to
       establish “civil” proceedings. If the intention of the legislature was to
       impose punishment, that ends the inquiry. If, however, the intention was to
       enact a regulatory scheme that is civil and nonpunitive, we must further
       examine whether the statutory scheme is so punitive either in purpose or
       effect as to negate [the State’s] intention to deem it “civil.” Because we
       ordinarily defer to the legislature’s stated intent, only the clearest proof will
       suffice to override legislative intent and transform what has been
       denominated a civil remedy into a criminal penalty.
                                               8
538 U.S. at 92 (internal citations and quotations omitted).

      With respect to the first prong of the analysis, the Tennessee Supreme Court has
considered the Act and concluded that “the registration requirements imposed by the sex
offender registration act are nonpunitive.” Ward v. State, 315 S.W.3d 461, 472 (Tenn.
2010). We concur, particularly in light of the Legislature’s findings at section 40-39-
201(b), stating in pertinent part:

               (6) To protect the safety and general welfare of the people of this
       state, it is necessary to provide for continued registration of offenders and
       for the public release of specified information regarding offenders. This
       policy of authorizing the release of necessary and relevant information
       about offenders to members of the general public is a means of assuring
       public protection and shall not be construed as punitive;

              ***

              (8) The general assembly also declares, however, that in making
       information about certain offenders available to the public, the general
       assembly does not intend that the information be used to inflict retribution
       or additional punishment on those offenders.

Accordingly, we proceed to address the second prong of our analysis, i.e., whether the
Act “is so punitive in effect as to negate the State’s intent” that it operate as “civil.”
Smith v. Doe, 538 U.S. at 92.

       In Smith v. Doe, the United States Supreme Court utilized the factors announced in
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), to determine whether a civil or
regulatory law was punitive in effect; in Doe v. Gwyn, this Court likewise recognized that
those factors “have been used by courts in the arena of sex offender registration and
reporting requirements.” 2011 WL 1344996, at *11 (citing Smith v. Doe, 538 U.S. at 96).
The factors are:

       (1) in its necessary operation, whether the regulatory scheme has been
       regarded in our history and traditions as a punishment; (2) whether the
       regulatory scheme imposes an affirmative disability or restraint; (3)
       whether the scheme promotes the traditional aims of punishment; (4)
       whether the scheme has a rational connection to a non-punitive purpose; or
       (5) whether the scheme is excessive with respect to this non-punitive
       purpose.


                                             9
The Kennedy v. Mendoza-Martinez factors have been applied in various ex post facto
challenges to the Act, with the courts determining that the Act’s requirements and
affirmative disabilities or restraints did not amount to a punishment. See Livingston, 2010
WL 3928634, at *6-7; Doe v. Cooper, 2010 WL 2730583, at *6-11; Doe v. Bredesen, No.
3:04-CV-566, 2006 WL 849849, at *7-10; Cutshall, 193 F.3d at 476-477. Inasmuch as
each as-applied constitutional challenge must be evaluated in light of its particular facts
and circumstances, Doe v. Cooper, 2010 WL 2730583 at *3, we turn to an examination
of the pleadings in this particular case, reproduced in pertinent part previously in this
opinion.

        In his amended petition, quoted in Section I at pages 4-5, supra, Mr. King alleged
specific facts which he asserted were evidence that the requirements and restrictions of
the Act constituted punishment. Given the liberal construction we are obliged to give
complaints when considering a motion to dismiss for failure to state a claim, we hold that
the petition, as amended, alleges sufficient facts which, if proven, could support a holding
that, as applied to Mr. King, the requirements and restrictions are not rationally connected
to a non-punitive purpose or are excessive relative to that purpose. See Kennedy, 372
U.S. at 168-69. We therefore reverse the dismissal of Mr. King’s petition with respect to
his as-applied ex post facto challenge. Our resolution in this regard has no bearing on the
merit of his claim.

        B. Due Process

      In his brief on appeal, Mr. King fails to make a cogent argument in support of his
contention that his due process rights were violated, and we will not make such an
argument for him. The totality of Mr. King’s due process argument is:

        By retroactively imposing lifetime registration, Tennessee has violated due
        process both by failing to provide “fair warning” at the time of the
        plaintiffs’ criminal proceedings, and by upsetting “settled expectations”
        arising out of those proceedings. The fact that [the Act] reaches so far into
        the past and so seriously curtails plaintiffs’ liberty makes its retroactive
        application particularly suspect. And it is beyond cavil that [the Act]’s
        “consequences are particularly harsh and oppressive.”

(Citations omitted). Mr. King’s brief fails to cite to any allegation in the petition, as
amended, where he identifies what liberty interest of his has been infringed by
application of the Act.6 The failure to support an assertion of error with argument or
6
  We do not take constitutional challenges lightly. In spite of his failure to appropriately brief this issue,
from the original petition and various amendments we have determined that the pleadings make the
following allegations in which the term “due process” is used:

        Under Plaintiffs unique circumstances as set out below, the SOP amounts to punishment.
                                                     10
citation to the record, or to case law or relevant authority, constitutes a failure to preserve
this issue for appellate review. Bailey v. Champion Window Co, Tri-Cities, 236 S.W.3d

        The punishment aspects are: . . . (3) removing a father [from his home] without a hearing
        and without any judicial process, violating the children of the father’s love and support in
        violation of the children’s due process rights as well as Plaintiffs and this gives the public
        no safety net from protection from sexual offenders; . . .

        ***

        The registration form requires the Plaintiff to disclose the following information listed
        below in violation of his constitutional right of privacy, due process, including the right
        to have his minor relatives in his home.

        ***

        The Plaintiff has had no opportunity for the TBI to present his evidence of good
        character, nor present any evidence of non-psychosis or likelihood of recidivism. Further,
        the Act gives total discretion to the TBI what to put in the record and the Act violates the
        due process clause and separation of powers clause of both the Tennessee and U.S.
        Constitutions in that an agency cannot exercise the question of constitutionality.

        ***

        The procedures for appeal of an adverse ruling by the TBI are inadequate, as the TBI is in
        charge of preparing the appeal record, which a citizen may not be permitted to
        supplement to raise equitable considerations. This violates fundamental due process.

        ***

        TCA 40-39-207(2) and (5) . . . only provide for the removal of the Plaintiff from
        registration and do not provide an adequate remedy concerning the Plaintiff living in the
        home with the minor child. Further, it would be unconstitutional for the TBI, a state
        executive agency, to conduct a judicial hearing. The review, if any, to Chancery Court on
        the record is prepared by the TBI thus depriving the Plaintiff due process, reasonable
        access to the Courts and the use of the Courts and the Courts inherent equitable powers.
        Particularly, as to preventing a minor from living with his father. The minor is not a
        victim of the crime.

        Plaintiff seeks to add a further demand for judgment to read as follows: That this Court
        hold that the residential and work restrictions statutes set forth in TCA 40-39-211 along
        with the registration requirements of TCA 40-39-201 et seq., especially 40-39-203[6] are
        facially in violation of the ex post facto and due process clauses of the state and U.S.
        Constitutions in failing to provide adequate procedures for the determination of whether
        or not their effect is punishment.

As we perceive these allegations, the concerns which are characterized as due process, are based on his
position that the Act does not provide adequate procedures to present evidence of his character and
likelihood of recidivism, issues we have addressed in our resolution of his as-applied ex post facto claim.

                                                     11
168, 173 (Tenn. Ct. App. 2007) (citing Tenn. R. App. P. 27(a)(7)(A); R. Ct. App. 6(b)).
Accordingly, we affirm the trial court’s dismissal of the allegations that the Act violates
Mr. King’s rights to due process of law.

        C. Whether the Act is an Unconstitutional Delegation of Power to the TBI

       Mr. King asserts that the grant of certain authority to the TBI in the Act constitutes
an unlawful delegation of power. Specifically, in the amended petition he alleged:

        The Plaintiff has had no opportunity for the TBI to present his evidence of
        good character, nor present any evidence of non-psychosis or likelihood of
        recidivism. Further, the Act gives total discretion to the TBI what to put in
        the record and the Act violates the due process clause and separation of
        powers clause of both the Tennessee and U.S. Constitutions in that an
        agency cannot exercise the question of constitutionality.

In his brief, Mr. King argues that the Act “advances the legislative intent poorly if at all
and may in fact undermine it” because “the obligations of advancing legislative intent in
complying with constitutional safeguards is … effectively dumped in the lap of the TBI,
which . . . has no authority to decide constitutional attacks on its mandate, or at least ones
making facial challenges.”

        Mr. King is correct that the TBI cannot decide facial constitutional challenges to
the Act; we note that “an agency does not have the authority to determine the facial
validity of a statute under the constitutional requirement of separation of powers.”
Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 844 (Tenn. 2008) (citing Tenn. Const.
art. II, § 2). “Questions of whether the application of a statute violates constitutional
principles should be submitted to the agency through a petition for a declaratory order
before any action is brought in the Chancery Court.” Colonial Pipeline Co. 263 S.W.3d at
846 (citing Tenn. Code Ann. § 4-5-225(b)).7 The record makes clear that Mr. King
sought a declaratory order with the TBI, raising a constitutional challenge to the Act, and
the TBI did not issue the requested order. Hence, his concerns regarding the

7
  The Tennessee Supreme Court has held that “the test for determining whether a statute is an unlawful
delegation is whether the statute contains sufficient standards or guidelines to enable both the agency and
the courts to determine if the agency is carrying out the legislature’s intent.” Bean v. McWherter, 953
S.W.2d 197, 199 (Tenn. 1997). Taken in its entirety, among other things, the Act imposes responsibilities
on the TBI to collect certain biographical information on each offender (section 40-39-206(d)), to
maintain the sex offender registry (section 40-39-204), to report current registry information to the
Federal Bureau of Investigation, as required by federal law (sections 40-39-206(a) & (b)), to consider
requests for termination of registration requirements (section 40-39-207). These responsibilities are
appropriate guidelines and provide sufficient standards to enable the TBI to carry out the legislative intent
of the Act expressed at section 40-39-201(b).

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constitutionality of the Act, as applied to him, will be addressed through the trial court’s
consideration of his ex post facto claim on remand.

       IV. CONCLUSION

        For the foregoing reasons, we reverse the dismissal of Mr. King’s claim that the
registration requirement and residential and work restrictions in the Act violate the
constitutional prohibitions on ex post facto laws, as applied to him; we affirm the
dismissal of all remaining claims; the case will be remanded for further proceedings in
accordance with this opinion.




                                                 RICHARD H. DINKINS, JUDGE




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