                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-1568
                                  ___________

John Doe, I, on their own behalf and as *
representatives of the class of all sex   *
offenders in the State of Iowa; John Doe,*
II, on their own behalf and as            *
representatives of the class of all sex   *
offenders in the State of Iowa; John Doe,*
III, on their own behalf and as           *
representatives of the class of all sex   *
offenders in the State of Iowa,           *
                                          *
               Appellees,                 *
                                          * Appeal from the United States
        v.                                * District Court for the Southern
                                          * District of Iowa.
Tom Miller, Iowa Attorney General;        *
                                          *
               Appellant.                 *
                                          *
J. Patrick White, as representatives      *
of the class of all county attorneys in   *
Iowa; Michael Wolf, as representatives *
of the class of all county attorneys in   *
Iowa,                                     *
                                          *
               Defendants.                *
                                     ___________

                            Filed: August 8, 2005 (Corrected: 08/24/05)

Before RILEY, MELLOY, and COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.

       This matter is before the court on the appellees’ motion to stay the mandate
pending the filing of a petition for writ of certiorari in the Supreme Court. The
motion follows this court’s decision rejecting appellees’ constitutional challenges to
the residency restrictions of Iowa Code § 692A.2A, relating to certain sex offenders.
Doe v. Miller, 405 F.3d 700 (8th Cir. 2005). Federal Rule of Appellate Procedure
41(d) provides that a motion to stay the mandate must show that the certiorari petition
would present a substantial question and that there is good cause for a stay. In
determining such a motion, we consider whether there is a reasonable probability that
the Supreme Court will grant certiorari, whether there is a fair prospect that the
movants will prevail on the merits, whether the movants are likely to suffer
irreparable harm in the absence of a stay, and the balance of the equities, including
the public interest. See, e.g., Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980)
(Brennan, J., in chambers); United States v. Holland, 1 F.3d 454, 456 (7th Cir. 1993)
(Ripple, J., in chambers); Stern, et al., Supreme Court Practice, § 17.19 (8th ed.
2002); Fed. R. App. P. 41(d), advisory committee’s note (discussing 1994 amendment
to subdivision (b) and citing Stern, supra).

       It is often difficult to predict whether the Supreme Court will grant review in
a case involving constitutional issues that have not been addressed directly in
previous decisions of the Court. The only arguments advanced by appellees that bear
on the likelihood of further review are that the panel divided two to one on its
decision finding the statute constitutional, (Motion at ¶ 2), that five members of this
court expressed a willingness to consider the matter en banc, (id. at ¶ 3), and that the
case presents a matter of “first impression” in the federal courts. (Id. at ¶ 4).

       The first point is not accurate. The panel unanimously rejected the appellees’
facial challenge to the constitutionality of the Iowa statute; the only division


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concerned the narrower question whether application of the statute to sex offenders
convicted prior to the date of enactment ran afoul of the Ex Post Facto Clause. Of
course, the Court may deem the latter issue alone worthy of review, cf. Smith v. Doe,
538 U.S. 84 (2003), and it might choose to review questions decided by a unanimous
panel. But to the extent appellees rely on division in the panel to show a likelihood
of further review, and to justify a continued injunction against enforcement of the
entire statute, the argument is of little persuasive value. The panel was unanimous
in rejecting appellees’ broad arguments that enforcement of the statute should be
enjoined with respect to sex offenders convicted after July 2002.

       That the case presents issues of “first impression” does not really suggest a
probability of further review. It means that there is no conflict in authority among the
courts of appeals that might prompt the Court to grant certiorari. See Sup. Ct. R.
10(a); see also Doe v. Petro, 2005 WL 1038846, at * 3 (S.D. Ohio May 3, 2005)
(rejecting request for temporary injunction of Ohio statute restricting residency of sex
offenders after concluding that plaintiffs were unlikely to succeed on the merits of
their claims). And it increases the possibility that the Court might think it better to
allow the States an opportunity to experiment with legislation regulating the
residency of sex offenders, and to revisit or reconsider such legislation after early
experience, before the Court enters the fray to establish what might be bright-line
constitutional rules. Again, of course, the Court may view the issues raised as
important questions of federal law that should be settled immediately, see Sup. Ct. R.
10(c), but this is a different point relating to the importance of the questions, rather
than the novelty of the questions in the federal courts.

       In a related argument, appellees urge that we should stay the mandate pending
a decision by the Supreme Court of Iowa concerning the constitutionality of the
statute, because a holding by the state court that the statute is unconstitutional would
“moot” further action by the plaintiff class. It might also be argued that a decision of
the state court of last resort in Iowa that conflicted with a decision of this court would

                                           -3-
increase the likelihood of review by the Supreme Court of the United States. See Sup.
Ct. R. 10(b). After the motion was filed, however, the Supreme Court of Iowa held
unanimously that the Iowa statute does not infringe the rights of a sex offender under
the substantive and procedural components of the Due Process Clause, the Self-
Incrimination Clause, or the Cruel and Unusual Punishment Clause, and ruled by a
vote of 5 to 2 that the statute is consistent with the Ex Post Facto Clause. State v.
Seering, No. 03-0776, 2005 WL 1790924 (Iowa July 29, 2005). This decision
eliminates one ground urged in support of the motion to stay mandate, and the
uniformity of opinion between this court and the highest court in Iowa is a factor
weighing against the likelihood of further review.

       This appeal does present several issues of constitutional law, including one that
divided the panel, and five members of our court thought the case worthy of en banc
review. We do not doubt that a petition for writ of certiorari will receive careful
consideration by the Court. A “reasonable probability” is something less than “more
likely than not,” and it may be a close case whether there is a “reasonable probability”
of further review. We do not believe appellees have demonstrated a particularly
strong probability.

       Appellees assert that if the mandate issues, “some” sex offenders will suffer
“significant hardship,” because they will have to move their residences from a
restricted zone to a permissible area. (Motion at ¶¶ 1, 5). They do not frame their
argument in terms of irreparable harm, and in one sense, there would be none. If
appellees ultimately succeed in the Supreme Court, and enforcement of the statute is
enjoined, then any sex offender who is required to move from a restricted zone will
be able to reestablish a residence within the zone. Although appellees do not press
the point, we recognize that the costs of moving a residence may constitute a form of
“irreparable harm,” because they would not be recoverable if the statute is later
declared unconstitutional. Appellees, however, provide no basis in the record for us
to determine how many members of the plaintiff class would be impacted, and the

                                          -4-
measure of the potential harm is largely speculative. The likelihood of this harm,
moreover, is lessened to some extent by a “grandfather provision” for any residence
established prior to the enactment of the statute in July 2002. Iowa Code
§ 692A.2A(4)(c). Only new residences established in the last three years would be
affected.

       We turn finally to the balance of the equities. To whatever extent members of
the plaintiff class would be required to move their residences, there would be some
cost and hardship. This equitable consideration, however, is balanced by the public
interest in enforcement of the statute, both with respect to members of the plaintiff
class who currently reside in a restricted zone, and as it relates to those sex offenders
who might seek to reside near a school or child care facility in the future. Iowa Code
§ 692A.2A is public safety legislation enacted three years ago on a matter of great
public concern. This court and the Supreme Court of Iowa have held that it is
constitutional. Given the relatively modest showings by the appellees on the
likelihood of further review and the risk of irreparable harm, we believe that the
equities and the public interest ultimately tip the balance against a stay of the
mandate. As always, a stay may be available from the Supreme Court itself if a
Justice of the Court concludes that the governing factors weigh differently. See 28
U.S.C. § 2101(f); Sup. Ct. R. 23. Our judgment is that a stay of the mandate is not
warranted.

      For the foregoing reasons, the appellees’ motion to stay mandate is denied.

      Judge Melloy dissents and would grant the motion.
                     ______________________________




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