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STATE OF MICHIGAN
IN THE SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee, Supreme Court No. 148981
Court of Appeals No. 319642
v Muskegon Cir. Ct. No. 12-062665-FH
PAUL J. BETTS, JR.,
Defendant-Appellant.
__________________________________/
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee, Supreme Court No. 153696
Court of Appeals No. 325449
v Gratiot Cir. Ct. No. 14-007061-FH
DAVID ALLEN SNYDER,
Defendant-Appellant.
__________________________________/
AMICUS CURIAE BRIEF OF
THE AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN
Miriam J. Aukerman (P63165)
American Civil Liberties Union Fund of Michigan
1514 Wealthy St. SE, Ste. 260
Grand Rapids, MI 49506
Michael J. Steinberg (P43085)
Monica Andrade (P81921)
American Civil Liberties Union Fund of Michigan
2966 Woodward Ave.
Detroit, MI 48201
Attorneys for Amicus
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
SUMMARY OF ARGUMENT ...................................................................................................... 1
I. BACKGROUND ..................................................................................................................... 2
A. The Legislative History of SORA ................................................................................... 2
B. The Does I Litigation ...................................................................................................... 3
C. The Does II Litigation ..................................................................................................... 5
D. The People v Temelkoski Case ........................................................................................ 8
E. The People v Betts and People v Snyder Cases ............................................................... 8
II. ARGUMENT........................................................................................................................... 9
A. This Court Should Not Grant Leave Because the Federal Courts and Legislature
Are Already Resolving the Ex Post Facto Issues at a Systemic Level. .......................... 9
B. The Severability Issues Present a Further Reason to Allow the Legislature to
Respond to Does I. ........................................................................................................ 12
1. The Legal Standard for Severability ........................................................................ 13
2. The 2011 SORA Amendments Are Not Severable.................................................. 14
3. “Reviving” Earlier Versions of SORA Would Make It Impossible for
Registrants to Know What Their Obligations Are and Would Contravene the
Legislature’s Intent. ................................................................................................. 18
4. This Court Should Allow the Legislature Time to Revise SORA Rather
Than Ruling on Severability Now. .......................................................................... 21
C. The State Is Collaterally Estopped From Relitigating the Issue of Whether
SORA Is Punishment. ................................................................................................... 23
1. The Ultimate Issue of Whether SORA Is Punishment Was Actually and
Necessarily Litigated to Final Judgment in Does I. ................................................. 24
2. Plaintiff Is in Privity With the Parties Who Had a Full and Fair Opportunity
to Litigate the Issue in Does I. ................................................................................. 25
3. Mutuality of Estoppel Is Not Required Because It Is Being Asserted
Defensively. ............................................................................................................. 26
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D. Smith v Doe Requires Review of the Entire Statutory Scheme. .................................... 27
CONCLUSION ............................................................................................................................. 32
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TABLE OF AUTHORITIES
Cases
Abela v General Motors Corp, 469 Mich 603; 677 NW2d 325 (2004) ........................................ 10
ACLU of Nevada v Masto, 670 F3d 1046 (CA 9, 2012) ............................................................... 36
Associated Builders & Contractors v Perry, 869 F Supp 1239 (ED Mich, 1994)
(Cleland, J.), rev’d on other grounds 115 F3d 386 (CA 6, 1997) ........................................ 19
Ayotte v Planned Parenthood of Northern New England, 546 US 320; 126 S Ct 961;
163 L Ed 2d 812 (2006) (citations omitted) .................................................................. 14, 25
Blank v Dep’t of Corrections, 462 Mich 103; 611 NW2d 530 (2000) ................................... 15, 17
Cady v Arenac Co, 574 F3d 334 (CA 6, 2009) ............................................................................. 29
Carter v Carter Coal Co, 298 US 238; 56 S Ct 855; 80 L Ed 1160 (1936) ................................. 20
Cutshall v Sundquist, 193 F3d 466 (CA 6, 1999) ......................................................................... 38
Doe v Bredesen, 507 F3d 998 (CA 6, 2007) ................................................................................. 38
Doe v Cuomo, 755 F3d 105 (CA 2, 2014) .................................................................................... 35
Doe v Dept of Public Safety and Corr Serv, 62 A3d 123 (Md, 2013) .......................................... 37
Doe v Miller, 405 F3d 700 (CA 8, 2005) ...................................................................................... 35
Doe v Pataki, 120 F3d 1263 (CA 2, 1997) ................................................................................... 35
Doe v State, 111 A3d 1077 (NH, 2015) ............................................................................ 34, 37, 38
Does #1-4 v Snyder, 932 F Supp 2d 803 (ED Mich, 2013) ............................................................ 4
Does #1-5 v Snyder (“Does I”), 834 F3d 696 (CA 6, 2016), reh den (2016), cert denied
138 S Ct 55; 199 L Ed 2d 18 (2017) ............................................................................. passim
Does #1-5 v Snyder, 101 F Supp 3d 672 (ED Mich, 2015) ........................................................ 4, 7
Does #1-5 v Snyder, 101 F Supp 3d 722 (ED Mich, 2015) ........................................................ 5, 7
Does #1-6 v Snyder (“Does II”), Eastern District of Michigan Docket No. 2:16-cv-
13137 (Cleland, J.) ................................................................................................................. 1
Dorchy v Kansas, 264 US 286; 44 S Ct 323; 68 L Ed 686(1924) ................................................ 15
Eubanks v Wilkinson, 937 F3d 1118 (CA 6, 1991)................................................................. 25, 26
Hatton v Bonner, 356 F3d 955 (CA 9, 2003) ............................................................................... 37
Hudson v United States, 522 US 93; 118 S Ct 488; 139 L Ed 2d 450 (1997) .............................. 33
In re Apportionment of State Legislature-1982, 413 Mich 96; 321 NW2d 565(1982) ................ 20
Kammerer v State, 322 P3d 827 (Wyo, 2014) .............................................................................. 37
Kansas v Hendricks, 521 US 346; 117 S Ct 2072; 138 L Ed 2d 501 (1997) .......................... 32, 33
Kennedy v Mendoza-Martinez, 372 US 144; 83 S Ct 554; 9 L Ed 2d 644 (1963) ........... 32, 34, 38
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Kentucky v Graham, 473 US 159; 105 S Ct 3099; 87 L Ed 2d 114 (1985) .................................. 29
Leavitt v Jane L, 518 US 137; 116 S Ct 2068; 135 L Ed 2d 443 (1996) ...................................... 27
Lichon v Am Universal Ins Co, 435 Mich 408; 459 NW2d 288 (1990) ....................................... 31
Litmon v Harris, 768 F3d 1237 (CA 9, 2014) .............................................................................. 35
McGuire v Strange, 83 F Supp 3d 1231 (MD Ala, 2015)....................................................... 23, 24
Monat v State Farm Ins Co, 469 Mich 679; 677 NW2d 843 (2004) ...................................... 28, 31
Moore v Avoyelles Corr Ctr, 253 F3d 870 (CA 5, 2001) ............................................................. 35
Parklane Hosiery Co v Shore, 439 US 322; 99 S Ct 645; 58 L Ed 2d 552 (1979)....................... 30
People v Lee, 314 Mich App 266; 886 NW2d 185 (2016) ........................................................... 29
People v Temelkoski, 498 Mich 942; 872 NW2d 219 (2015) ......................................................... 9
People v Temelkoski, 501 Mich 960; 905 NW2d 593 (2018) ......................................................... 9
People v Zitka, 325 Mich App 38; __ NW2d __; 2018 WL 3130600, at *2 (2018) .............. 27, 28
Platinum Sports Ltd v Snyder, 715 F3d 615 (CA 6, 2013) ........................................................... 30
Pletz v Sec’y of State, 125 Mich App 335; 336 NW2d 789 (1983) .............................................. 15
Pusey v City of Youngstown, 11 F3d 652 (CA 6, 1993) ............................................................... 29
R Retirement Bd v Alton Co, 295 US 330; 55 S Ct 758; 79 L Ed 1468(1935) ............................. 16
Republic Airlines, Inc v Dep’t of Treasury, 169 Mich App 674; 427 NW2d 182 (1988) ............ 15
Roe v Snyder, 2018 WL 4352687 (ED Mich 2018) ...................................................................... 13
Roe v Snyder, 240 F Supp 3d 697 (ED Mich, 2017)................................................................. 6, 13
RW v Sanders, 168 SW3d 65 (Mo, 2005) ..................................................................................... 37
Shaw v Patton, 823 F3d 556 (CA 10, 2016) ........................................................................... 35, 36
Smith v Doe, 538 US 84; 123 S Ct 1140; 155 L Ed 2d 164 (2003) ....................................... passim
Snyder v Does #1-5, __ US __; 137 S Ct 1395; 197 L Ed 2d 552 (2017) ...................................... 5
Snyder v Does #1-5, __US __; 138 S Ct 55; 199 L Ed 18 (2017) .................................................. 6
Starkey v Oklahoma Dep’t of Corr., 305 P3d 1004 (Okla, 2013 .................................................. 38
State v Letalien, 985 A2d 4 (Me, 2009) ........................................................................................ 37
State v Peterson-Beard, 377 P3d 1127 (Kan, 2016) ..................................................................... 35
State v Seering, 701 NW2d 655 (Iowa, 2005) .............................................................................. 35
State v Williams, 952 NE2d 1108 (Ohio, 2011)...................................................................... 37, 38
State v Worm, 680 NW2d 151 (Neb, 2004) .................................................................................. 35
Stone v Williamson, 482 Mich 144; 753 NW2d 106 (2008) ......................................................... 20
United States v Leach, 639 F3d 769 (CA 7, 2011) ....................................................................... 35
United States v Parks, 698 F3d 1 (CA 1, 2012)............................................................................ 35
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United States v Treasury Emps, 513 US 454; 115 S Ct 1003; 130 L Ed 2d 964 (1995) .............. 25
United States v Under Seal, 709 F3d 257 (CA 4, 2013) ............................................................... 36
United States v WBH, 664 F3d 848 (CA 11, 2011) ...................................................................... 37
Viele v DCMA, 167 Mich App 571; 423 NW2d 270 (1988) ........................................................ 29
Virginia v American Booksellers Ass’n, Inc, 484 US 383; 108 S Ct 636; 98 L Ed 2d
782 (1988) ............................................................................................................................ 25
Wallace v State, 905 NE2d 371 (Ind, 2009) ........................................................................... 37, 38
Weaver v Graham, 450 US 24; 101 S Ct 960; 67 L Ed 2d 17 (1981) .................................... 33, 34
Weems v Little Rock Police Dep’t, 453 F3d 1010 (CA 8, 2006) .................................................. 35
Statutes
1994 PA 295 ................................................................................................................................... 3
1994 PA 295, § 5(1) ........................................................................................................................ 3
2004 PA 237 ................................................................................................................................. 22
2004 PA 238 ................................................................................................................................. 22
2004 PA 239 ........................................................................................................................... 22, 24
2004 PA 240, § 5a(4) .................................................................................................................... 22
2005 PA 121 ................................................................................................................................... 3
2005 PA 127 ................................................................................................................................... 3
2005 PA 132 ................................................................................................................................... 3
2006 PA 132, § 5(1) ...................................................................................................................... 23
2006 PA 46 ..................................................................................................................................... 3
2011 PA 17 ............................................................................................................................... 4, 24
2011 PA 17, § 3 ............................................................................................................................ 17
2011 PA 18 ............................................................................................................................... 4, 24
42 USC 1983 ........................................................................................................................... 10, 13
MCL 8.4 ........................................................................................................................................ 23
MCL 8.5 .................................................................................................................................. 16, 17
MCL 28.721 .................................................................................................................................... 1
MCL 28.722(g) ............................................................................................................................. 23
MCL 28.722(k) ............................................................................................................................. 18
MCL 28.722(r)-(w) ......................................................................................................................... 4
MCL 28.723 .................................................................................................................................. 18
MCL 28.725(1)(a) ......................................................................................................................... 23
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MCL 28.725(1)(b)......................................................................................................................... 21
MCL 28.725(10)-(12) ................................................................................................................... 18
MCL 28.725(10)-(13) ..................................................................................................................... 4
MCL 28.725a .......................................................................................................................... 18, 22
MCL 28.725a(3) ........................................................................................................................... 18
MCL 28.728(8) ............................................................................................................................. 16
MCL 28.730(3) ............................................................................................................................. 17
MCL 28.733-.736.......................................................................................................................... 17
Other Authorities
Does I, Brief of United States as Amicus Curiae, 2017 WL 2929534 (July 7, 2017) ........ 6, 34, 36
Does II Plaintiffs’ Motion for Partial Summary Judgment ........................................................... 26
Does II Second Amended Complaint ............................................................................................. 8
Rules
Fed R Civ P 65(d) ......................................................................................................................... 30
MCR 7.305(B) .............................................................................................................................. 12
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SUMMARY OF ARGUMENT
This Court should deny leave to appeal for four reasons. First, in August 2016, the Sixth
Circuit Court of Appeals held that Michigan’s Sex Offenders Registration Act (SORA), MCL
28.721, et seq., imposes punishment in violation of the Ex Post Facto Clause of the United States
Constitution, and that retroactive application of its 2006 and 2011 amendments must cease. See
Does #1-5 v Snyder (“Does I”), 834 F3d 696, 705-706 (CA 6, 2016), reh den (2016), cert denied
138 S Ct 55; 199 L Ed 2d 18 (2017). While this Court is not bound by that decision, the State of
Michigan is bound, meaning that it must amend SORA to conform to the Does I decision,
irrespective of any decision by this Court.
Second, Michigan registrants have filed a federal class action lawsuit to ensure that the
Sixth Circuit decision in Does I is applied to all eligible registrants. See Does #1-6 v Snyder
(“Does II”), Eastern District of Michigan Docket No. 2:16-cv-13137 (Cleland, J.). With the
consent of the state, that class has been certified and a motion for partial summary judgment on
the ex post facto claim is pending. Because the ex post facto issues raised here are being
addressed on a class-wide basis in the federal litigation, this Court should deny leave to appeal.
Third, in response to the Does II litigation, serious legislative reform efforts are
underway for comprehensive SORA reform that would not only remedy the constitutional flaws
in the statute, but would reflect modern social science and best practices. The Does II litigation is
being held in abeyance to give the legislature time to revise the statute. Like the federal district
court, this Court should give the legislature the opportunity to rework the statute, and should
therefore deny leave to appeal.
Fourth, the 2006 and 2011 SORA amendments cannot be retroactively applied under the
Sixth Circuit’s decision, but the 2011 amendments are not severable, meaning that the entire
statute is in jeopardy as applied to pre-2011 registrants. Because a ruling voiding the statute in
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toto could lead to a rushed, ill-considered legislative revision, the severability problems provide
another reason to let the ongoing legislative process play out.
For these reasons, this Court should deny leave to appeal, and should instead vacate the
lower courts’ decisions and remand both Mr. Snyder’s and Mr. Betts’ cases for reconsideration
in light of Does II. This Court should instruct the lower courts on remand to consider whether the
state is collaterally estopped from relitigating the issue of whether SORA is punishment, and
whether the prosecutors here, who are in privity with the state, are therefore bound by the Does I
decision.
Finally, if the Court does grant leave and reaches the ex post facto question itself, it must
look at the cumulative impact of the statute, just at the United States Supreme Court did in Smith
v Doe, 538 US 84, 92; 123 S Ct 1140; 155 L Ed 2d 164 (2003). Any leave grant should be
accompanied by further briefing, particularly as to severability and collateral estoppel—
important issues which merit full briefing if they are to be decided by this Court.
I. BACKGROUND
A. The Legislative History of SORA
When Michigan first passed a sex offender registration law in 1994, it was a very
different statute than it is today. 1994 PA 295. Under the 1994 statute, registration information
was available only to law enforcement, and was exempt from public disclosure. After the initial
registration was completed, the only additional obligation was to notify local law enforcement
within 10 days of a change of address. The registrant did not need to notify law enforcement in
person. 1994 PA 295, § 5(1). Since that time, the legislature has repeatedly amended the statute,
imposing an ever stricter regime with new burdens on registrants, covering more people and
more conduct. The result of these multiple amendments is a complex web of restrictions that
govern virtually every facet of registrants’ lives.
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As the Sixth Circuit explained in Does I, “[o]ver the first decade or so of SORA’s exist-
ence, most of the changes centered on the role played by the registry itself.... [But] Michigan
began taking a more aggressive tack in 2006….” Does I, 834 F3d at 697-698. The 2006 amend-
ments (effective 1/1/06) retroactively barred registrants (with limited exceptions) from working,
residing, or loitering within 1,000 feet of school property, and imposed criminal penalties for
noncompliance. 2005 PA 121; 2005 PA 127. Penalties for registration-related offenses were also
increased. 2005 PA 132. Another amendment, which was also applied retroactively, gave
subscribing members of the public electronic notification when people registered or moved into a
particular zip code. 2006 PA 46.
The 2011 amendments (effective 4/12/11) retroactively imposed extensive new reporting
requirements, mandating in-person (and in some cases) immediate reporting of vast amounts of
personal information. 2011 PA 17-18. The 2011 amendments also retroactively categorized
registrants into tiers, with tier classifications determining the length of time a person must
register and the frequency of reporting. See id., codified as MCL 28.722(r)-(w); MCL
28.725(10)-(13). Tier classifications are based solely on the offense of conviction. Id. They are
not based on a registrant’s actual risk of re-offending and there is no individualized determ-
ination of whether the registrant poses any risk to the public.
B. The Does I Litigation
In 2012, six Michigan registrants challenged the constitutionality of SORA. The United
States District Court for the Eastern District of Michigan (Cleland, J.) granted the defendants’
motion to dismiss the ex post facto claim, but denied the motion with respect to various other
claims. Does #1-4 v Snyder, 932 F Supp 2d 803 (ED Mich, 2013). After extensive discovery, the
court held a Rule 52 bench trial on a voluminous record, which included seven expert reports, 21
depositions, and extensive documentary evidence about the functioning of the registry. The
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parties’ stipulated joint statement of facts alone was 262 pages. The district court held that some
parts of SORA are unconstitutionally vague or violate the First Amendment, and that registrants
cannot be held strictly liable for unintentionally violating SORA. Does #1-5 v Snyder, 101 F
Supp 3d 672, 713-714 (ED Mich, 2015). In a supplemental opinion, the Court held that retro-
actively extending the duration of certain internet reporting requirements violates the First
Amendment. Does #1-5 v Snyder, 101 F Supp 3d 722, 730 (ED Mich, 2015).
On appeal, the Sixth Circuit held that SORA is punishment. The court said that
successive amendments had made the law so onerous that it could no longer be described as
regulatory. See Does I, 834 F 3d at 705-706. Accordingly, the court held that “[t]he retroactive
application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must
therefore cease.” Id. at 706. The court decided the case solely on ex post facto grounds, declining
to reach the district court’s rulings that other aspects of SORA are unconstitutional, but noted:
“[T]his case involves far more than an Ex Post Facto challenge. And as the district court’s
detailed opinions make evident, Plaintiffs’ arguments on these other issues are far from frivolous
and involve matters of great public importance.” Id.
The state petitioned for certiorari, and the United States Supreme Court sought the views
of the United States Solicitor General. Snyder v Does #1-5, __ US __; 137 S Ct 1395; 197 L Ed
2d 552 (2017). The Solicitor General advised that the petition did not warrant review, explaining:
Michigan’s sex-offender-registration scheme contains a variety of features that go
beyond the baseline requirements set forth in federal law and differ from those of
most other States. After applying the multifactor framework set out in Smith v
Doe, 538 US 84 (2003), the court of appeals concluded that the cumulative effect
of SORA’s challenged provisions is punitive for ex post facto purposes. While
lower courts have reached different conclusions in analyzing particular features of
various state sex-offender-registration schemes, the court of appeals’ analysis of
the distinctive features of Michigan’s law does not conflict with any of those
decisions, nor does it conflict with this Court’s holding in Smith. Every court of
appeals that has considered an ex post facto challenge to a sex offender-registry
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statutory scheme has applied the same Smith framework to determine whether the
aggregate effects of the challenged aspects of that scheme are punitive. And
although most state sex offender-registry schemes share similar features, they
vary widely in their form and combination of those features. Accordingly, to the
extent the courts of appeals have reached different outcomes in state sex offender-
registry cases, those outcomes reflect differences in the statutory schemes rather
than any divergence in the legal framework. Finally, petitioners’ concern [] that
the court of appeals’ decision will prevent the State from receiving some federal
funding does not warrant review. That concern is premature, as it may well be the
case that Michigan can continue to receive federal funds notwithstanding this
decision. And the decision does not prevent the State from implementing a sex-
offender-registration scheme that is consistent with federal law. Further review is
therefore not warranted.
Does I, Br of United States as Amicus Curiae, 2017 WL 2929534, at *9-10 (July 7, 2017). On
October 2, 2017, the state’s petition for writ of certiorari was denied. See Snyder v Does #1-5,
__US __; 138 S Ct 55; 199 L Ed 18 (2017).
C. The Does II Litigation
Despite the Sixth Circuit’s and district court’s decisions in Does I, tens of thousands of
other registrants are still being subjected to SORA provisions that those courts held were
unconstitutional. The legislature has not yet amended the statute, and some law enforcement
agencies are attempting to enforce the unconstitutional provisions. See, e.g., Roe v Snyder, 240 F
Supp 3d 697 (ED Mich, 2017).
On June 28, 2018, six registrants filed a class action complaint seeking to ensure that the
Does I decisions were applied to all Michigan registrants.1 See Does II. The complaint sought
class-wide relief on four counts, all issues on which the Does I plaintiffs had prevailed either
before the district court or the Sixth Circuit. Those four counts are:
1 The complaint was initially filed on August 30, 2016, several days after the Sixth
Circuit’s decision in Does I, and the case was designated a “companion case” to Does I and was
transferred to Judge Cleland. The case was then stayed pending resolution of the then-pending
cert petition in Does I.
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1. Vagueness. The district court in Does I had found SORA’s geographic exclusion
zones and some of SORA’s reporting requirements to be unconstitutionally vague.
Does #1-5 v Snyder, 101 F Supp 3d 672, 681-690 (ED Mich, 2015).
2. Strict Liability. The district court had held that “[a]mbiguity in the Act, combined
with the numerosity and length of the Act’s provisions make it difficult for a well-
intentioned registrant to understand all of his or her obligations,” and concluded that a
knowledge requirement is necessary “to ensure due process of law.” Id. at 693.
3. First Amendment. The district court had invalidated various SORA provisions as
violating the constitutional right to freedom of speech. Id. at 704; Does v Snyder, 101
F Supp 3d 722, 722-730 (ED Mich, 2015).
4. Ex Post Facto. This claim sought implementation of the Sixth Circuit’s decision
barring retroactive application of the 2006 and 2011 SORA amendments. The
plaintiffs further alleged that the 2011 SORA amendments cannot be severed from
SORA because the unconstitutional portions are so entangled with the other sections
that they cannot be removed without adversely affecting the operation of the act. As a
result, the plaintiffs alleged that there is no statute in effect that lawfully imposes
restrictions and obligations based on conduct occurring before April 12, 2011.
The plaintiffs then filed two motions. The first sought class certification. The state
defendants, recognizing that a class-wide resolution was needed to address implementation of
Does I, agreed to class certification. The resulting stipulated class certification order certified a
“primary class” defined as all people who are or will be subject to registration under Michigan’s
Sex Offenders Registration Act.” Ex A, Does II Certification Order. There are an estimated
44,000 people subject to registration under SORA who are members of the primary class. Does
II Second Amended Complaint, ¶ 180. Approximately 2,000 people are added to the registry
each year. Id.
The court also certified two “ex post facto” sub-classes, defined as follows:
a. The “pre-2006 ex post facto subclass” is defined as members of the primary class
who committed their offense or offenses requiring registration before January 1,
2006, and who have committed no registrable offense since.
b. The “2006-2011 ex post facto subclass” is defined as members of the primary class
who committed their offense or offenses requiring registration on or after January 1,
2006, but before April 12, 2011, and who have committed no registrable offense
since.
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Ex A, Does II Certification Order. There are tens of thousands of people in each subclass,
although the exact number is not known. Does II Second Amended Complaint, ¶ 181.
The Does II plaintiffs also filed a motion for partial summary judgment on behalf of the
ex post facto subclasses. The motion asked the court to declare, consistent with Does I, that the
2006 and 2011 SORA amendments constitute punishment and cannot be applied retroactively to
registrants who committed their registrable offense before the effective dates of those amend-
ments, and to permanently enjoin the defendants from retroactively enforcing the 2006 and 2011
SORA amendments.2
The plaintiffs then sent a letter to the defendants, suggesting that the parties seek to settle
the Does II litigation by focusing their discussions on developing proposed legislation that they
could jointly send to the legislature. Ex B, Oct 10, 2018 Aukerman Correspondence. The letter
noted that there has been long-standing legislative interest in addressing the systemic problems
with Michigan’s registry, but that those problems have been difficult to address for political
reasons. Id. The letter further noted that not only does the Does II class action provide an
important opportunity to reform the law, but the legislature must pass a new statute in order to
resolve the litigation:
[B]ecause the 2011 SORA amendments likely are not severable, and because
SORA is incomprehensible in their absence, the chances are high that SORA must
be rewritten. The only questions are: 1) how much litigation will have to occur
before that occurs; and 2) what will the new statute look like.
Id. at 3.
The parties’ representatives then met, along with legislative staff, and have been working
towards comprehensive SORA reform. Experts at the University of Michigan have agreed to
2 The motion asked, in the alternative, for a preliminary injunction.
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analyze relevant state data to ensure the new statute will be evidence-based. The federal district
court agreed to hold the case in abeyance while legislative negotiations are ongoing, but is
requiring monthly status reports and has orally informed the parties that, absent sufficient
progress on a legislative solution, the case will be returned to the active docket.
D. The People v Temelkoski Case
When this Court granted leave in People v Temelkoski, 498 Mich 942; 872 NW2d 219
(2015), it ordered briefing on the question of whether SORA constitutes punishment. (The case
was ultimately decided on due process grounds, People v Temelkoski, 501 Mich 960; 905 NW2d
593 (2018).) Relevant here is that while Temelkoski was pending, the Sixth Circuit decided Does
I, the state filed a petition for certiorari in the United States Supreme Court, and the petition was
denied. The day before oral argument, the State of Michigan submitted a letter to this Court
stating:
Last week, the United States Supreme Court denied Michigan’s petition for
certiorari in Snyder v Does #1–5, No. 16-768. As a result, the Sixth Circuit’s
decision in Does #1–5 v Snyder, 834 F3d 696 (2016), is final and entitled to
precedential weight. Thus, while this Court is not bound by the decision of an
intermediate federal appellate court, the State, after further consideration and out
of concern for actions brought under 42 USC § 1983, waives the argument that it
may retroactively apply the 2006 and 2011 amendments to Michigan’s Sex
Offender Registry Act.
Ex C, Oct. 10, 2017 Letter of Aaron Lindstrom.
E. The People v Betts and People v Snyder Cases
On February 27, 2014, the Michigan Court of Appeals denied leave on Mr. Betts’
delayed application for leave to appeal. Betts Appendix 93a. On February 18, 2016, the Court of
Appeals issued an unpublished opinion in Mr. Snyder’s case holding that SORA did not
constitute punishment. Snyder Appendix 12a-13a. Both cases were decided prior to the Sixth
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Circuit’s August 25, 2016, decision in Does I, meaning that the Court of Appeals did not have
the benefit of that decision in making its own.
II. ARGUMENT
A. This Court Should Not Grant Leave Because the Federal Courts and Legislature
Are Already Resolving the Ex Post Facto Issues at a Systemic Level.
This Court should not grant leave to appeal because the questions presented here are
already being addressed at a systemic level both in the federal court system and in the legislature.
First, the Sixth Circuit has already rendered a decision on the ex post facto issue. This Court, of
course, is not bound by the Sixth Circuit’s Does I decision. Abela v General Motors Corp, 469
Mich 603, 607; 677 NW2d 325 (2004). But that decision is binding on the State of Michigan, as
the State itself acknowledged when it informed this Court in Temelkoski that it waived any
argument that it may retroactively apply SORA’s 2006 and 2011 amendments. Ex C, Oct. 10,
2017 Letter of Aaron Lindstrom. Moreover, the Does I decision reflected years of litigation on
an extraordinarily comprehensive record, including extensive expert evidence. That record
provided a better factual basis to decide weighty constitutional questions than the thin records
available in the instant criminal appeals.
Second, the Sixth Circuit decision is also binding on United States District Court for the
Eastern District of Michigan, which is adjudicating the Does II class action. That Court has, with
the consent of all parties, already certified a class comprised of all Michigan registrants, and two
sub-classes that specifically seek to have the Does I ex post facto decision applied to them. A
motion for partial summary judgment on the ex post facto claim is pending. If legislative reform
efforts fail, the federal court will necessarily be deciding the ex post facto issues presented here.
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Third, in response to the Does II litigation, the legislature is working on a major rewrite
of SORA, meaning that the version of the statute currently before this Court is unlikely to remain
in existence. Moreover, as the Gratiot County Prosecutor so aptly said:
Setting public-safety policy is a task entrusted to the Legislature, not the courts,
and the Legislature has the institutional competence to study relevant statistics, to
draw conclusions from those statistics, and to enact policy accordingly.
Snyder Prosecutor Br 33. Yet the Gratiot County Prosecutor nevertheless asks this Court to
short-circuit that very process, which is currently underway. The major stakeholders are at the
table and are actively reviewing reforms that would not only remedy the constitutional flaws that
the Sixth Circuit and federal district court identified in SORA, but would also reflect current
evidence-based best practices, which have shown that many of SORA’s features are counter-
productive and actually decrease public safety.
This Court’s primary role is to decide questions of great legal import that have
implications for the state’s jurisprudence overall, not just the rights of individual litigants. See
MCR 7.305(B). The questions presented here are indisputably significant. However, given that
(absent a legislative solution) the federal court will be deciding the ex post facto question for the
certified class in accordance with Does I, it is unclear whether a decision by this Court would
directly affect anyone other than the litigants themselves. (Even the extent to which it would
ultimately affect Mr. Betts’ and Mr. Snyder’s future registration requirements is questionable.3)
Certainly if this Court went further than the Sixth Circuit, that could impact the federal district
court’s decision in Does II or the legislature’s rewrite of the statute, since both entities would
3 It is not necessary to resolve the complex legal questions regarding whether a class-wide
injunction in Does II would apply to Mr. Betts and Mr. Snyder in order to recognize that, as a
practical matter, if SORA is substantially revised, the legislature is unlikely to create a separate
registration statute that applies to Mr. Betts and Mr. Snyder. Nor is the Michigan State Police
likely to develop separate procedures or internet interfaces for two individuals that differ from
those used for other registrants, even assuming it could legally do so.
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then want to respect not just the Sixth Circuit but this Court. If this Court were to disagree with
the Sixth Circuit, however, the federal district court would still be bound to follow Does I.
Similarly, any legislative rewrite of the statute—whether voluntary or in response to a federal
injunction—would need to conform to Does II. In other words, while a decision by this Court
expanding on Does I would have an impact, no useful purpose would be served by this Court
weighing in to disagree with the Sixth Circuit.
The prosecutors here appear to be trying to manufacture a conflict between this Court and
the Sixth Circuit. But the consequence of such conflicting interpretations would be incredible
confusion, if not chaos, for registrants and law enforcement alike. And, inevitably, more
litigation. Police officers who make arrests in reliance on a state law that is unconstitutional
under clearly established Sixth Circuit law could find themselves defendants in lawsuits for
damages under 42 USC 1983. Registrants would rush to federal court to obtain injunctions there
against state-court prosecutions. And courts would try to sort out who is civilly or criminally
liable for what based on abstention and comity doctrines that are far too complicated to guide the
behavior of either registrants or law enforcement. One of the main reasons that the Does II class
action was brought, and that the state consented to class certification, is that all parties
recognized the importance of clear, uniform legal standards that can be applied across the board.
Even now, some state prosecutors have threatened or are bringing SORA prosecutions for
conduct that is protected under Does I, a problem the Does II class action is intended to address.
A good example is Roe v Snyder, 240 F Supp 3d 697 (ED Mich, 2017), where a registrant, who
was convicted in 2003 for an offense involving consensual sex with a younger teen, was told by
police that she could not continue her employment as the clinical director of a residential drug
treatment center because her job was located within 1,000 feet of a school. Because Does I
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barred retroactive application of SORA’s exclusion zones to the plaintiff, the federal district
court enjoined the Wayne and Oakland County prosecutors from prosecuting her under SORA.4
Such litigation would multiply if there were conflicting decisions between the Sixth Circuit and
this Court, since registrants would preemptively seek out the protection of the federal courts in
advance of any possible state-court prosecutions, so as to avoid the complicated federal
abstention and preclusion doctrines that would limit registrants’ ability to secure relief in federal
court once state-court prosecutions are underway or result in convictions.
In sum, this Court should deny leave because the questions presented here are already
being systemically addressed by the federal courts and the Michigan legislature.
B. The Severability Issues Present a Further Reason to Allow the Legislature to
Respond to Does I.
The Gratiot County Prosecutor argues that this Court should grant leave to decide the
severability issues that are likely to arise if there is not a legislative solution in Does II, namely
whether the 2006 and 2011 amendments can be severed from SORA. Snyder Prosecutor Br 41.
To the contrary, the severability issues militate in favor of not granting leave. As set out below,
the 2011 SORA amendments are not severable, meaning that if this Court decides severability it
would be voiding the entire statute as applied to pre-2011 registrants. In response to such a
decision, the legislature would, almost inevitably, rewrite SORA. But the resulting statute would
likely be a hasty, ill-thought-out one, rather than one developed through the considered,
evidence-based legislative discussions currently underway.
In sum, the fact that constitutional problems are enmeshed in the very fabric of SORA
militates in favor of allowing the legislature time to revise the statute. If the Court does grant
4 The district court later vacated the injunction against the Wayne County Prosecutor after it
agreed to be bound by Does I. Roe v Snyder, 2018 WL 4352687 (ED Mich 2018). The Oakland
County Prosecutor agreed to a stipulated judgment that it would not enforce SORA violations
barred under Does I.
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leave, however, it should order further briefing on severability.
1. The Legal Standard for Severability
When confronted with an unconstitutional statute, a court must balance two competing
concerns. The court must restrain itself from “rewriting state law to conform it to constitutional
requirements” and must avoid “quintessentially legislative work[.]” Ayotte v Planned Parent-
hood of Northern New England, 546 US 320, 329; 126 S Ct 961; 163 L Ed 2d 812 (2006)
(citations omitted). At the same time, the Court should “try not to nullify more of a legislature’s
work than is necessary,” and should therefore sever problematic portions of a statute if possible.
Id. Whether a law can be salvaged by severing unconstitutional provisions, or whether instead
the court would be involved in impermissible legislative rewriting depends on how deeply
embedded the unconstitutional provisions are in the statutory fabric.
For severance to work, “the valid portion of the statue must be independent of the invalid
sections, forming a complete act within itself.” Pletz v Sec’y of State, 125 Mich App 335, 375;
336 NW2d 789 (1983). When the objective of the act can be achieved without the invalid part,
the act should be upheld. Republic Airlines, Inc v Dep’t of Treasury, 169 Mich App 674; 427
NW2d 182 (1988). If, however, the “unconstitutional portions are so entangled with the others
that they cannot be removed without adversely affecting the operation of the act,” then the court
must find that the act as a whole is unconstitutional. Blank v Dep’t of Corrections, 462 Mich 103,
123; 611 NW2d 530 (2000).
When passing a statute, the legislature can opt to include a severability clause that
“provides a rule of construction which may sometimes aid in determining legislative intent.”
Dorchy v Kansas, 264 US 286, 290; 44 S Ct 323; 68 L Ed 686(1924). Such a clause “has the
effect of reversing the presumption which would otherwise be indulged, of an intent that, unless
the act operates as an entirety, it shall be wholly ineffective.” R Retirement Bd v Alton Co, 295
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US 330, 362; 55 S Ct 758; 79 L Ed 1468(1935). SORA does not contain its own severability
clause.5 The Michigan legislature, however, has enacted a general severability provision, which
states:
In the construction of the statutes of this state the following rules shall be
observed, unless such construction would be inconsistent with the manifest intent
of the legislature, that is to say:
If any portion of an act or the application thereof to any person or circumstances
shall be found to be invalid by a court, such invalidity shall not affect the
remaining portions or application, provided such remaining portions are not
determined by the court to be inoperable, and to this end acts are declared to be
severable.
MCL 8.5 (emphasis added). Therefore, MCL 8.5 instructs the Court to determine whether, if the
invalid portions of SORA are stricken from the statute, the remaining portions can function on
their own.
Importantly, the question is not, as the Gratiot County Prosecutor suggests, whether an
earlier version of SORA (e.g., a basic address reporting requirement) would be constitutional, or
whether the legislature could again pass such a law. Rather, the severability inquiry asks
whether, given how the statute is written today, the reviewing court must engage in statutory
redrafting in order to make the law constitutional in the absence of the offending provisions.
2. The 2011 SORA Amendments Are Not Severable.
The Sixth Circuit in Does I held that SORA’s 2006 and 2011 amendments cannot be
retroactively applied. Does I, 834 F3d at 706. The 2006 SORA amendments imposed geographic
exclusion zones barring registrants from living, working or “loitering” within 1,000 feet of a
school, and provided for public email notification about registrants. Because these amendments
5 MCL 28.728(8) does provide that if public availability of SORA information is unconst-
itutional, the Michigan State Police must revise the website so that it does not contain that
information.
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are self-contained as separate sections in the code,6 it is a relatively easy to sever them: those
sections simply cannot be applied to registrants whose offenses predate the enactment of those
sections.
The 2011 amendments, by contrast, are not severable. SORA was entirely rewritten that
year, and the 2011 amendments are deeply embedded in the statute. Indeed, as the attached high-
lighted version of the law shows, the 2011 amendments make up nearly half of the current
statute. See SORA with 2006 and 2011 Amendments Highlighted, attachment to Ex B,
Aukerman Correspondence, at 10-30. Because, in the absence of the 2011 amendments, SORA’s
remaining provisions are not “otherwise complete in [themselves] and [are not] capable of being
carried out without reference to the unconstitutional [sections],” Blank, 462 Mich at 123, any
attempt to sever the 2011 amendments leaves the statute inoperable within the meaning of MCL
8.5.
The 2011 amendments created a three-tier system that classifies registrants based on their
offenses. Key definitional terms, which are used throughout the statute and trigger SORA’s
obligations, were added or rewritten. For example, 2011 PA 17, § 3, codified as MCL 28.723,
specifies who must register (namely those convicted of “listed offenses”). Section (2)(k) of the
Act, codified as MCL 28.722(k), defines “listed offense” to mean “a tier I, tier II, or tier II
offense.” Similarly, Section 5(10)-(12), codified as MCL 28.725(10)-(12), keys the length of
registration to a registrant’s tier classification, and Section 5a(3), codified as MCL 28.725a(3),
keys the frequency of registration to a registrant’s tier classification. As a result, if every piece of
SORA that was added in 2011 is excised, the remaining statute is an incomprehensible amalgam
6 The 2006 amendments adding geographic exclusion zones were codified as MCL 28.733-.736.
The amendment allowing subscription email notification when a person registers or moves into a
specified zip code was codified as MCL 28.730(3).
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of procedural provisions referencing the excised sections.
Because the 2011 amendments are so deeply embedded in the statute, there is no way to
excise them and leave behind a statute that can be given effect without the stricken language. For
example, the basic verification requirements set out in MCL 28.725a require tier I registrants to
report once a year, tier II registrants to report twice a year, and tier III registrants to report
quarterly. If one removes the language about tiering, the statute does not specify how often a
registrant must report or when. Similarly, because the duration of registration is keyed to a
person’s tier level, MCL 28.725(10)-(12), if one excises the tiering language, the of statute does
not state how many years a person is subject to SORA. In other words, the statute is incompre-
hensible without the tier structure. Yet that tier structure was one of the features SORA that the
Sixth Circuit found to be punitive. Does I, 834 F3d at 705 (unlike Alaska’s first-generation
registration statute, SORA “categorizes [registrants] into tiers ostensibly corresponding to
present dangerousness without any individualized assessment thereof”).
The situation is even more complicated by the fact that under the Sixth Circuit’s decision
in Does I, the 2011 amendments are not unconstitutional for all registrants—but only for
registrants whose offenses predate the amendments. By contrast, the constitutional flaws found
by the district court in Does I—including vagueness, strict liability and First Amendment
violations—make those aspects of the statute unconstitutional for both pre- and post-2011
registrants. Until the legislature acts, it is impossible to know whether the legislature will want
one unified Does I-compliant statute for all registrants (which has the advantage of
administrative simplicity and allows the legislature to cure not just the ex post facto problems but
the other constitutional violations), or whether the legislature will instead want to pass a law
imposing different restrictions based on offense date (since post-2011 registrants are not affected
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by the Sixth Circuit’s decision but only by the district court’s rulings).
In cases where, as here, the unconstitutional provisions are embedded in the statute,
courts regularly find that such provisions are not severable. For example, in Associated Builders
& Contractors v Perry, 869 F Supp 1239, 1254 (ED Mich, 1994) (Cleland, J.), rev’d on other
grounds 115 F3d 386 (CA 6, 1997), the court held that the impermissible sections of a statute
were so interwoven with the permissible provisions that they were not severable, that what
would be left of the statute after severance of the preempted provisions would not comport with
the intent of the Michigan legislature, and therefore that the statue was unenforceable in its
entirety. See also In re Apportionment of State Legislature-1982, 413 Mich 96, 138; 321 NW2d
565(1982) (holding that once the state apportionment formula was declared to be illegal, “all the
apportionment rules fell because they are inextricably related,” and therefore not severable).
The argument against severability here is even stronger because the 2011 SORA
amendments were a total rewrite of the law, so that excising them would leave a nonsensical
alphabet soup of a law, incomprehensible to registrants and police agencies alike. The amend-
ments “are not like a collection of bricks, some of which may be taken away without disturbing
the [provisions as they existed before], but rather are like the interwoven threads constituting the
warp and woof of a fabric, one set of which cannot be removed without fatal consequences to the
whole.” Carter v Carter Coal Co, 298 US 238, 315; 56 S Ct 855; 80 L Ed 1160 (1936).
Because SORA here is “inoperable” under MCL 8.5, the statute “cannot be judicially
enforced because doing so requires the Court to impose its own prerogative on an act of the
Legislature.” Stone v Williamson, 482 Mich 144, 161; 753 NW2d 106 (2008). Given how
sweeping the changes introduced by the 2011 amendments were, it is simply impossible to know
whether the legislature would have passed the law without the amendments that the Sixth Circuit
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ultimately declared to be unconstitutional, or what the legislature will do now that the Sixth
Circuit has held that those amendments cannot be retroactively enforced. In sum, the 2011
amendments cannot be severed from SORA without making the statute inoperable, and the Court
cannot redraft the statute without presuming to know what the legislature would want done.
3. “Reviving” Earlier Versions of SORA Would Make It Impossible for
Registrants to Know What Their Obligations Are and Would Contravene
the Legislature’s Intent.
The Gratiot County Prosecutor, apparently recognizing that severing the 2011 amend-
ments would be unworkable, suggests that some earlier version of the statute—although it is
unclear which one—should be “revived.” Snyder Prosecutor Br 40. The Prosecutor himself does
not know whether the pre-2006 or pre-2011 statute is the one that allegedly is in effect. Id. The
argument is an odd one for the Gratiot County Prosecutor to make, since the revival theory is
entirely inapplicable to Mr. Snyder: the provision of SORA that Mr. Snyder violated—failing to
report in person within three days after changing his employment, MCL 28.725(1)(b)—was
added in 2011, and was not part of any earlier statute that could theoretically be revived.7
To the extent that the Gratiot County Prosecutor is arguing more broadly for revival, it is
unclear not only what version of the statute the Gratiot County Prosecutor proposes to “revive,”
but to whom the “revived” statute would apply. Does the prior statute (whichever version it is)
“revive” only for pre-2011 registrants who are affected by the Does I decision or for all
registrants? If only for the pre-2011 registrants, are there now simultaneously two versions of the
statute in effect: one version for pre-2011 registrants and one for post-2011 registrants? If the
7 Mr. Betts failed to register his address, his vehicle, and his email address. (05/30/2013 Plea Tr
10-11, Betts Appendix 40a-41a.) The vehicle and email reporting requirements were added in
2011. Prior versions of SORA did contain an address reporting requirement, but the timeframe
for reporting such information has changed over time. Revival of some undetermined earlier
version of the statute would create vagueness problems as applied to Mr. Betts, since when he
had to report his change of address would depend on which version of the statute is operative.
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current version applies to some registrants and the revived version to others, will all pre-2011
registrants be covered by the same “revived” statute? Or will the 2005 version apply to pre-2006
registrants, the 2010 version to pre-2011 registrants, and the 2019 version to everyone else, so
that there are actually three versions of the statute simultaneously in effect? The Gratiot County
Prosecutor has not said. How registrants can know what law to follow, or how law enforcement
can know what statute to enforce, is a mystery.
The problem is compounded by the fact that old versions of the statute no longer exist in
a form that can be located or consulted.8 Without the text of a law to look at, no one—not
registrants, law enforcement, prosecutors, defense lawyers, or judges—will know what people’s
obligations are.
Some examples may help illustrate the problem. A previous version of SORA required
registrants to report in January, April, July, and October. See, e.g., 2004 PA 240, § 5a(4). Today,
the statute requires registrants to report based on their birth month—a change adopted to spread
out reporting in order to solve the problem of long lines at registry sites. MCL 28.725a. If either
the 2005 or 2010 versions of SORA “revive,” then surely the old time schedule would revive as
well. Thus a registrant born in February would, under the Gratiot County Prosecutor’s inter-
pretation of “current” law, be required to report in February, May, August and November, but
8 To piece together the version of SORA in effect at any given time, one can—if one has the
relevant Public Act numbers and years of enactment—go to the Michigan Legislature’s website,
http://www.legislature.mi.gov/, and pull up those Public Acts. But, even that will not produce a
copy of the law in effect. One cannot get the pre-2006 law by looking at the Public Acts adopted
in 2006. Instead, one has to work backward. The immediately prior SORA revision, 2004 PA
238, contains the then-operative § 8, but not the rest of the statute. One can find §§ 4, 4a, 5a, 5b
and 5c and § 9 in 2004 PA 237. For §§ 11, 13 and 14, one can go to 2004 PA 239. Sections 2, 4,
5, 5a, 8, 8c, 8d, and 10 are found in 2004 PA 240. For other sections, one must go even further
back. Searching through these acts to determine which provisions were in effect at any given
time is challenging, even for counsel who have spent years working on this statute. Neither
registrants nor police officers will have any idea where to look.
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under the older “revived” versions of the statute would be required to report in January, April,
July, and October. A registrant who guessed wrong about when to report—which seems
inevitable when there is no copy of the law for the person to look at—could face felony charges
and prison.
A similar problem exists with reporting a change of address. Under the existing statute,
address changes must be reported “immediately,” MCL 28.725(1)(a), a term defined under the
2011 amendments to mean “within three business days.” MCL 28.722(g). Earlier versions of the
statute, however, provided ten days to update address information. See, e.g., 2006 PA 132, §
5(1). If a registrant reports on day seven, is that a crime?
As these scenarios illustrate, because the 2011 amendments were a total rewrite of
SORA, it is not possible to simply “revive” some earlier version. Indeed, Michigan law has
adopted an anti-revival approach: “Whenever a statute, or any part thereof shall be repealed by a
subsequent statute, such statute, or any part thereof, so repealed, shall not be revived by the
repeal of such subsequent repealing statute.” MCL 8.4. Here, the legislature effectively repealed
large portions of the earlier SORA statute with the 2011 amendments. Now that those
amendments cannot be retroactively applied, MCL 8.4 suggests that this “judicial repeal” should
not result in a revival of the previous law.
An instructive case is McGuire v Strange, 83 F Supp 3d 1231 (MD Ala, 2015), where
Alabama made an implicit “revival” argument after registrant-plaintiffs prevailed on several
constitutional challenges to that state’s SORA. The state argued that the relief granted by the
court should be limited to those convicted before 1996, because the more recent 2011 changes
(challenged in the lawsuit) were “a mere reconfiguration or re-enactment of Alabama’s prior sex-
offender regulatory scheme.” Id. at 1271. The court rejected that argument, stating that “such an
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argument is disingenuous in that [the 2011] revisions to the [older version of Alabama’s SORA]
were so extensive and far-reaching as to relegate the prior statute to mere irrelevance. For
numerous reasons scattered throughout this opinion, [the 2011 SORA] is far more than a mere
reconfiguration of the prior scheme.” Id. So too here. The 2011 Michigan statutory changes were
not a mere reconfiguration or re-enactment of Michigan’s earlier sex-offender regulatory
scheme, but rather were “so extensive and far-reaching as to relegate the prior statute to mere
irrelevance.” Id.
Not only is revival unworkable in practice, it contravenes legislative intent. There is no
evidence that the legislature today would want the 2005 or 2010 laws to be enforced as written.
And that is not just because the state would prefer to retain registry reporting by birthday. The
legislature has made many changes over the last decade, including removing “Romeo and Juliet”
offenders and children under the age of 14, making registration for older youth non-public, and
altering the offenses that result in registration. See, e.g., 2004 PA 239, 240; 2011 PA 17, 18. A
wholesale “revival” of an earlier statute would not just remove provisions that the Sixth Circuit
found to be punitive. It would recreate some of the worst, most punitive aspects of the registry,
leading not just to further litigation but reversing (constitutional) legislative modifications to the
statute and undermining the legislature’s intent.
4. This Court Should Allow the Legislature Time to Revise SORA Rather
Than Ruling on Severability Now.
The United States Supreme Court has said that, “mindful that our constitutional mandate
and institutional competence are limited, we restrain ourselves from ‘rewrit[ing] state law to
conform it to constitutional requirements’ even as we strive to salvage it.” Ayotte, 546 US at 329
(quoting Virginia v American Booksellers Ass’n, Inc, 484 US 383, 397; 108 S Ct 636; 98 L Ed
2d 782 (1988)). Further, “making distinctions in a murky constitutional context, or where line-
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drawing is inherently complex, may call for a ‘far more serious invasion of the legislative
domain’ than we ought to undertake.” Id. (quoting United States v Treasury Emps, 513 US 454,
479 n26; 115 S Ct 1003; 130 L Ed 2d 964 (1995)). These concerns are strongest and judicial
deference is most appropriate where, as here, the legislature is already contemplating a
comprehensive re-write of the statute. In such a situation, “a federal court, on reviewing a state
statute, does not assume the task of making such choices for the state legislature.” Eubanks v
Wilkinson, 937 F3d 1118, 1127 (CA 6, 1991). Rather, the reviewing federal court should allow
the “State [to] pursue its own policy choices in fashioning new legislation,” permitting those
individuals implicated by the legislation to “remain[] free of undue burden while the legislature
redesigns its statute.” Id.
This Court should give the legislature the time and space it needs to write a new statute,
rather than presuming what statute the legislature would have written had it known the 2011
amendments violated the Ex Post Facto Clause. That is the approach that the federal district
court, at the joint request of the plaintiffs and state defendants, is taking in Does II. The Does II
complaint specifically sought declaratory and injunctive relief based on the fact that the 2011
amendments are not severable, and therefore SORA is null and void as applied to people who are
subject to registration based on offenses committed before April 12, 2011. Does II Compl, Relief
¶ G. In their motion for partial summary judgment, however, the plaintiffs argued:
Nevertheless, for now the plaintiffs ask the Court to defer any relief on
severability []. That will give the parties time to see whether, as part of the
negotiations on the consent judgment for []declaratory and injunctive relief on
non-retroactivity of 2006 and 2011 amendments[], the parties can negotiate class-
wide relief that would obviate the need to decide the severability issues. Deferring
a ruling on [severability] relief would also give the legislature more time to revise
the statute….
Moreover, an early ruling on severability favorable to the plaintiffs would have
significant implications for the state’s ability to require any form of registration of
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pre-2011 registrants while the legislature is deciding what it wants to do.
Although the plaintiffs are entitled to the benefits of the Sixth Circuit’s decision
while the legislative process plays out, the last thing the plaintiffs or the state
defendants (or the Court) should want is for the legislature to rush through a
hastily-drafted statute due to a judicial ruling that SORA is entirely inoperable.
Indeed, the legislature, faced not only with an unconstitutional statute but mount-
ing evidence that SORA is ineffective, may take the opportunity for another total
rewrite of the statute that reflects current evidence-based social science research
on the ineffectiveness of public registries. See Does #1-5, 834 F.3d at 704 (“the
record before us provides scant support for the proposition that SORA in fact
accomplishes its professed goals”). All parties will benefit if the legislature has
sufficient time to draft a new, evidence-based SORA.
Does II Plaintiffs’ Mot for Partial Summ J 22-23. While the Does II plaintiffs reserve the right to
seek relief on severability, “they are willing, in the interests of judicial economy and careful
legislative reform” to first see if the legislative reform is possible within a reasonable time frame.
Id.
The fact that both the plaintiffs and state defendants in Does II, with the court’s blessing,
have deferred a decision on severability also reflects a very practical reality: the result of a ruling
that the 2011 amendments are not severable is that the statute will need to be rewritten. There is
no point wasting the resources of the parties or the courts on further litigation only to end up in
exactly the same place we are now, namely negotiations over what a new SORA statute should
look like. This Court, like the federal district court, should wait to see if the legislative reform
efforts are successful. If those negotiations fail, and a decision on severability becomes
necessary, the federal district court could always decide to certify the severability issue to this
Court, since severability is ultimately a question of state law. Leavitt v Jane L, 518 US 137, 139;
116 S Ct 2068; 135 L Ed 2d 443 (1996).
C. The State Is Collaterally Estopped From Relitigating the Issue of Whether
SORA Is Punishment.
This Court need not independently reach the merits of the ex post facto question because
the State is collaterally estopped from relitigating the issues it lost in Does I. “The doctrine of
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collateral estoppel generally precludes relitigation of an issue in a subsequent proceeding when
that issue has previously been the subject of a final judgment in an earlier proceeding.” People v
Zitka, 325 Mich App 38; __ NW2d __; 2018 WL 3130600, at *2 (2018). Collateral estoppel
applies when (1) an ultimate issue essential to the judgment was actually and necessarily litigated
and determined in the previous action, and (2) the same parties, or parties in privy, had a full and
fair opportunity to litigate the issue. Id. at *2–3. In Michigan, when collateral estoppel “is
asserted defensively to prevent a party from relitigating an issue that such party has already had a
full and fair opportunity to litigate in a prior suit,” there is no “mutuality of estoppel”
requirement; the party asserting estoppel need not have been a party, or privy to a party, in the
previous action. Monat v State Farm Ins Co, 469 Mich 679, 691-692, 695; 677 NW2d 843
(2004).
Applying the doctrine here, the State is estopped from relitigating whether SORA is
punishment. Because the collateral estoppel issue has not been considered by the lower courts,
this Court should vacate the decisions in these two appeals and remand.
1. The Ultimate Issue of Whether SORA Is Punishment Was Actually and
Necessarily Litigated to Final Judgment in Does I.
In Does I, the Sixth Circuit held that SORA imposes punishment, and therefore its
retroactive application violates the Ex Post Facto Clause of the United States Constitution. Now,
the State is asking this Court to consider the very question that was fully litigated and determined
by a valid and final judgment, thus requesting an impermissible second bite at the apple. The
issue presented here is not just merely similar to the issue previously litigated, it is identical
because it raises nothing more than a determination of whether SORA is punishment. Without a
material nuance or novel issue to be decided by this Court, the litigant’s persistence must give
way to preservation of resources and judicial economy. See Monat, 469 Mich at 693.
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2. Plaintiff Is in Privity With the Parties Who Had a Full and Fair
Opportunity to Litigate the Issue in Does I.
The plaintiff in these cases, the State of Michigan, is substantially the same, and certainly
in privity with, the defendants in Does I, which included the governor in his official capacity as
chief executive of the State. “Privity between a party and a non-party requires both a substantial
identity of interests and a working or functional relationship . . . in which the interests of the non-
party are represented and protected by the party in the litigation.” People v Lee, 314 Mich App
266, 279 n 8; 886 NW2d 185 (2016) (internal quotation marks omitted). “While there is no
general prevailing definition of privity, it has been described as including a person so identified
in interest with another that he or she represents the same legal right. Examples include the
relationship of principal and agent, master and servant, or indemnitor and indemnitee.” Viele v
DCMA, 167 Mich App 571, 580; 423 NW2d 270 (1988).
The principal-agent relationship establishes privity here. When a county prosecutor
brings criminal charges in the name of “the People of the State of Michigan,” the prosecutor
necessarily acts as an agent of that State. See Cady v Arenac Co, 574 F3d 334, 343 (CA 6, 2009);
Pusey v City of Youngstown, 11 F3d 652, 657-658 (CA 6, 1993). Similarly, when a civil action
proceeds against the governor in his or her official capacity to enjoin the enforcement of state
criminal laws, the lawsuit is treated as one against the State. See Kentucky v Graham, 473 US
159, 165; 105 S Ct 3099; 87 L Ed 2d 114 (1985). In such civil suits, when the governor is an
official-capacity defendant, the resulting judgment is binding on county prosecutors enforcing
state law. Platinum Sports Ltd v Snyder, 715 F3d 615, 619 (CA 6, 2013); see also Fed R Civ P
65(d) (injunctions binding on agents). Thus, the plaintiff in this case—the State, through its
county prosecutors—is in privity with the defendant bound by the judgment in Does I—the
governor in his official capacity as chief executive.
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Further, there can be little question that the State had a full and fair opportunity to litigate
the issue in Does I of whether SORA is punishment. The attorney general’s office vigorously
defended the constitutionality of SORA in the trial court, on appeal in the Sixth Circuit, and
through an unsuccessful petition for writ of certiorari to the United States Supreme Court. The
record, following extensive discovery, included seven expert reports, 21 depositions, extensive
documentary evidence about the functioning of the registry, and a stipulated joint statement of
facts that numbered 262 pages. Moreover, there are no “procedural opportunities” in Michigan
state court to defend the constitutionality of SORA “that were unavailable in the first action of a
kind that might be likely to cause a different result.” Parklane Hosiery Co v Shore, 439 US 322,
332; 99 S Ct 645; 58 L Ed 2d 552 (1979).
3. Mutuality of Estoppel Is Not Required Because It Is Being Asserted
Defensively.
In some cases, collateral estoppel requires satisfaction of a third element, “mutuality of
estoppel.” Monat, 469 Mich at 683-684. When it applies, the mutuality requirement means that
“in order for a party to estop an adversary from relitigating an issue that party must have also
been a party, or privy to a party, in the previous action.” Id. at 696 (Cavanagh, J., dissenting)
(internal quotation marks omitted). But the “trend in modern law [is] to abolish the requirement
of mutuality,” Lichon v Am Universal Ins Co, 435 Mich 408, 427; 459 NW2d 288 (1990), and in
Monat, this Court held that “where collateral estoppel is being asserted defensively against a
party who has already had a full and fair opportunity to litigate the issue, mutuality is not
required.” Monat, 469 Mich at 680-681.
Here, mutuality is not required because the State has already had a full and fair
opportunity to litigate whether SORA is punishment, and the parties in whose favor collateral
estoppel operates are the defendants in these criminal prosecutions. Estoppel may be applied
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defensively against the State even though the defendants were not parties in Does I. Monat,
supra.
D. Smith v Doe Requires Review of the Entire Statutory Scheme.
If this Court does grant leave and ultimately reaches the merits of the ex post facto
question, it must analyze SORA as whole, rather than—as the prosecutors here suggest—
artificially disaggregating SORA’s many obligations to assess only whether a specific provision,
standing in isolation, constitutes punishment. As the Sixth Circuit recognized, SORA “has grown
into a byzantine code governing in minute detail the lives of the state’s sex offenders.” Does I,
834 F3d at 697. To adopt a piecemeal approach to analyzing that byzantine code of obligations
would directly contradict Smith v Doe, 538 US at 92, which requires courts to determine whether
the “statutory scheme” is punitive, not whether each individual provision, standing alone, is
punishment.
In Smith, the United States Supreme Court considered the Alaska statute as a whole,
asking whether “the statutory scheme,” the “regulatory scheme,” or “the Act” imposed
punishment, in toto. Smith, 538 US at 92, 94, 96-97, 99, 104-105. To determine legislative intent
the Court looked at “the statute’s text and its structure.” Id. at 92. Similarly, the Court applied the
factors of Kennedy v Mendoza-Martinez, 372 US 144; 83 S Ct 554; 9 L Ed 2d 644 (1963), to the
“regulatory scheme.” Smith, 583 US at 97. Thus, the Court considered the entirety of the Alaska
statute and “how the effects of the Act are felt by those subject to it.” Id. at 99-100 (emphasis
added). The Court did not ask whether any one provision was punitive, but whether the statute in
its entirety imposed punishment.
The importance of a holistic analysis can be seen by comparing Smith with the US
Supreme Court’s earlier ex post facto decision in Kansas v Hendricks, 521 US 346; 117 S Ct
2072; 138 L Ed 2d 501 (1997). There, this Court held that civil commitment was not punishment
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because it “unambiguously requires a finding of dangerousness,” not just a past conviction, and
because the state had “taken great care to confine only a narrow class of particularly dangerous
individuals, and then only after meeting the strictest procedural standards.” Id. at 357, 364. In
Smith, the Court held that Alaska’s registration scheme was regulatory, even though it was
triggered solely by past convictions without individualized evidence of current risk, because the
law imposed only the “minor condition of registration” and simply “allow[ed] the public to
assess the risk on the basis of accurate, nonprivate information about the registrants’ convic-
tions.” Smith, 538 US at 104. Thus, whether a statute is punitive or regulatory depends both on
the “magnitude of the restraint” and whether any “categorical [conviction-based] judgments” are
“reasonable.” Id. at 103-104.
In Does I, the Sixth Circuit analyzed SORA as a whole to conclude it is punishment. As
the United States Solicitor General told the Supreme Court in opposing cert in Does I: “The court
of appeals correctly focused on the cumulative effects of the challenged aspects of SORA to
decide if it is punitive, just as this Court had done in Smith.”9 Does I, Br of United States as
9 To the extent that the Gratiot County Prosecutor argues that Hudson v United States, 522 US
93; 118 S Ct 488; 139 L Ed 2d 450 (1997), and Weaver v Graham, 450 US 24, 36 n 22; 101 S Ct
960; 67 L Ed 2d 17 (1981), suggest the ex post facto analysis should focus on individual
components of the statutory scheme, rather than the statutory scheme as a whole, see Snyder
Prosecutor Br 39, the United States Solicitor General disposed of that theory:
In Hudson, the Court concluded that neither of the challenged statutory
requirements indicated that the scheme had a punitive effect under any of the
relevant factors identified in Kennedy v Mendoza-Martinez, 372 US 144, 168-169
(1963). Hudson, 522 US at 103-105. The Hudson Court therefore had no need to
consider the cumulative effect of such factors. In Weaver, when the Court
analyzed changes to a state law governing the accrual of prison good-time credits,
it expressly considered the aspects of the new law that reduced the availability of
good-time credits in conjunction with other aspects of the law that expanded
opportunities to obtain a reduction in sentence through means other than good
behavior. 450 US at 26-28, 34-36. Thus, the Weaver Court considered the
cumulative effects of the new statutory scheme, just as the court of appeals did
here.
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Amicus Curiae, 2017 WL 2929534, at *11 (July 7, 2017). This focus on the entire “statutory
scheme” also makes sense because registrants experience the cumulative effects of the whole
statute, not just one provision or another. Registrants do not compartmentalize their lives into the
effects of the exclusion zones, the immediate and in-person reporting requirements, and the
stigma of being branded as a dangerous offenders—restrictions that are imposed for decades or,
in most cases, for life without any individualized review. Registrants experience all these effects
all at once all the time.
The prosecutors here urge this Court to disregard Smith’s holistic test, and isolate specific
subsections of Michigan’s law—such as the immediate in-person employment reporting
requirement. But even if one were to look at just one provision, one cannot do so without
context. For example, it matters whether the immediate in-person employment reporting require-
ment is imposed on all registrants irrespective of actual risk, for how many years the requirement
lasts, and whether registrants face lengthy prison sentences for even inadvertent noncompliance.
See, e.g., Doe v State, 111 A3d 1077, 1101 (NH, 2015) (“Absent the lifetime-registration-
without-review provision, we would not find the other effects of the act sufficiently punitive to
overcome the presumption of its constitutionality.”).
The prosecutors also argue that this Court should ignore the Sixth Circuit’s opinion about
the Michigan statute, citing instead to decisions by other courts about other statutes that are quite
different from SORA. All the cases prosecutors cite, however, involved either more limited
statutes or instances were individuals chose to challenge only certain statutory provisions, rather
Does I, Br of United States as Amicus Curiae, 2017 WL 2929534, at *11 n 2 (July 7, 2017).
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than the statute as a whole.10
As the United States Solicitor General told the Supreme Court, in
explaining why Does I does not create a circuit split:
In light of the variation among jurisdictions’ sex offender-registration laws, courts
may reach different ex post facto results without creating conflicts over legal
principles. That is true even when the two laws share common features when
described at a relatively high level of generality. The details matter.
Does I, Br of United States as Amicus Curiae, 2017 WL 2929534, at *15 (July 7, 2017).
None of the cases the prosecutors cite involves a statute like Michigan’s that combines
blanket restrictions on housing and employment, limitations on “loitering” (which encompasses
many basic parenting activities), advance notice for travel, lifetime in-person and “immediate”
reporting of minor status changes, and public stigmatization based on “tiered” levels of alleged
10
See, e.g., United States v Parks, 698 F3d 1 (CA 1, 2012) (challenging only in-person
reporting); Doe v Cuomo, 755 F3d 105 (CA 2, 2014) (challenging only extension of registration
requirements and elimination of ability of certain registrants to petition for relief from
registration); Doe v Pataki, 120 F3d 1263, 1268-1269, 1285 (CA 2, 1997) (challenging only
registration requirement and community notification provisions for certain registrants); Moore v
Avoyelles Corr Ctr, 253 F3d 870 (CA 5, 2001) (challenging only community/neighborhood
notification); United States v Leach, 639 F3d 769 (CA 7, 2011) (challenging only registration
requirements); Weems v Little Rock Police Dep’t, 453 F3d 1010, 1013-1014 (CA 8, 2006)
(challenging classification procedures and residency restriction based on individualized
assessment of high risk); Doe v Miller, 405 F3d 700 (CA 8, 2005) (challenging only residency
restriction for offenses against minors); Litmon v Harris, 768 F3d 1237 (CA 9, 2014)
(challenging only in-person reporting); Shaw v Patton, 823 F3d 556 (CA 10, 2016) (considering
only in-person reporting and residency restrictions); State v Worm, 680 NW2d 151 (Neb, 2004)
(challenging only registration and community notification); State v Peterson-Beard, 377 P3d
1127 (Kan, 2016) (challenging only in-person quarterly reporting, lifetime registration and
drivers’ license marker); State v Seering, 701 NW2d 655 (Iowa, 2005) (challenging only
residency restriction).
Only one of the cases the prosecutors cite, Shaw v Patton, even concerned a challenge to the
combined effects of residential exclusion zones and ongoing reporting. But that statute did not
limit where registrants can work and the plaintiff failed to preserve a challenge to a loitering
prohibition. Nor was there any challenge to offense-based tiering. Moreover, the plaintiff had put
forward no evidence to counter the state’s asserted public safety rationales, Shaw, 823 F3d at
574. In Does #1-5 the plaintiffs produced a wealth of supportive modern social science research.
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dangerousness without any individualized assessment of dangerousness.11
Indeed, many of the
cases the prosecutors cite emphasize the absence of provisions found in Michigan’s law in con-
cluding that the law in question is not punitive.12
By contrast, courts finding ex post facto viola-
tions, like the Sixth Circuit, have focused on the cumulative impact of statutes that impose
multiple, intersecting restrictions.13
Even the same courts can reach different conclusions over
11
Even in discussing particular sub-sections, the prosecutors conflate statutes with quite different
effects. For example, Michigan’s exclusion zones bar not simply living, but also working or
“loitering” (including spending time with one’s own children) within 1,000 feet of a school. The
exclusion zone cases cited by the prosecutors involve only residency limitations, not barriers to
employment, or “loitering.”
12 See, e.g., United States v Under Seal, 709 F3d 257, 265 (CA 4, 2013) (statute “‘does not
restrain activities sex offenders may pursue but leaves them free to change jobs or residences’”
(quoting Smith, 538 US at 100)); ACLU of Nevada v Masto, 670 F3d 1046, 1056 (CA 9, 2012)
(noting that registration law “does not limit the activities that registrants may pursue or limit
registrants’ ability to change jobs or residences”); Hatton v Bonner, 356 F3d 955, 964 (CA 9,
2003) (in-person registration requirement while “important” was “not enough” to make law
punitive “when balanced against” other aspects of statute, such as fact that registration
information was not disseminated on the internet); United States v WBH, 664 F3d 848, 855, 858
(CA 11, 2011) (in-person reporting alone “not enough” to prove punishment where regulatory
regime does not “directly restrict [registrants’] mobility, their employment, or how they spend
their time”); Kammerer v State, 322 P3d 827, 837 (Wyo, 2014) (examining “statute in its
entirety” and concluding that 21-day-advance notice requirement for international travel was not
enough to make entire statute punitive); RW v Sanders, 168 SW3d 65, 70 (Mo, 2005) (where
statute did not restrict housing, work, or travel, reporting requirement was not punitive).
13 See, e.g., Doe v State, 111 A3d 1077, 1084-1087, 1094 (NH, 2015) (citing combined effect of
publication of registrants’ “victim profiles” and “methods of approach,” as well as extensive
reporting requirements including advance reporting of on-line identifiers); Doe v Dept of Public
Safety and Corr Serv, 62 A3d 123, 139-142, 148 (Md, 2013) (combined effects of prohibition on
entering specified areas, extensive in-person reporting including advance travel notification, and
active email notification of public) (“[T]he cumulative effect of 2009 and 2010 amendments of
the State’s sex offender registration law took that law across the line from civil regulation to an
element of the punishment of offenders.”); State v Williams, 952 NE2d 1108, 1111-1113 (Ohio,
2011) (combined effects of residential exclusion zones, designation of some registrants as
“sexual predators,” frequent in-person reporting in multiple jurisdictions, and elimination of
individualized review) (“When we consider all the changes [to the Act] in aggregate, we
conclude that imposing the current registration requirements on a sex offender whose crime was
committed prior to the enactment of [the current Act] is punitive.”); Wallace v State, 905 NE2d
371, 375-377, 380 (Ind, 2009) (combined effects of residential exclusion zones, internet
designation of some registrants as “sex predators,” ID requirement, expansive reporting require-
ments, and prior notification of travel) (“Considered as a whole … [the Act] impose[s]
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time as statutes evolve. Courts that have found modern “super-registration” laws to be punitive
have almost invariably upheld earlier less onerous versions of those same laws as remedial.14
The flexible nature of the Mendoza-Martinez factors shows that there is a sliding scale
between remedial and punitive statutes, so that changes to the same law over time can, in the
aggregate, tip the balance from remedial to punitive. Mendoza-Martinez, 372 US at 168-169. In
weighing the Mendoza-Martinez factors, it matters whether the challenged statute is a simple
first-generation registry law similar to the Alaska statute in Smith, or (as here) is a modern super-
registration statute that resembles lifelong probation, labels some registrants as the most
dangerous, and severely restricts where registrants can live, work, or spend time. If the Court
does grant leave, it must, as Smith instructs, apply the Mendoza-Martinez factors to the statute as
a whole. The Court should not miss the forest by looking at the trees.
CONCLUSION
For the reasons set forth above, this Court should deny leave to appeal. Because it would
be unjust to allow Mr. Betts’ and Mr. Snyder’s convictions to stand when the statute they
violated has been held unconstitutional by the Sixth Circuit, this Court should vacate the lower
court decisions and remand both cases for further consideration in light of Does I. On remand,
the lower courts should be instructed to consider whether the prosecutors are collaterally
substantial disabilities on registrants.”); State v Letalien, 985 A2d 4, 10, 12, 23 (Me, 2009)
(finding punitive cumulative effect of 24-hour reporting window, prohibition on contact with
children with enhanced penalties in exclusion zones, in-person reporting, and extension of
registration from 15 years to life without possibility of waiver).
14 See, e.g., Doe v State, 111 A3d at 1100 (“No one amendment or provision is determinative,
but the aggregate effects of the statute lead us to our decision ... [that] the punitive effects clearly
outweigh the regulatory intent of the act.” (emphasis added)); State v Williams, 952 NE2d at 1113
(“No one change compels our conclusion that [the statute] is punitive. It is a matter of degree
whether a statute is so punitive that its retroactive application is unconstitutional.”); Wallace, 905
NE2d at 374-77, 384; Starkey v Oklahoma Dep’t of Corr., 305 P3d 1004, 1025 (Okla, 2013). The
Sixth Circuit itself has twice upheld simple first-generation registration statutes. See Doe v
Bredesen, 507 F3d 998 (CA 6, 2007); Cutshall v Sundquist, 193 F3d 466 (CA 6, 1999).
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estopped from relitigating whether SORA is punishment. If the Court does grant leave to appeal,
it should order further briefing, particularly with respect to severability and collateral estoppel.
Respectfully submitted,
/s/ Miriam Aukerman
Miriam Aukerman (P63165)
American Civil Liberties Union Fund of Michigan
1514 Wealthy SE, Suite 260
Grand Rapids, MI 49506
(616) 301-0930
Michael J. Steinberg (P43085)
Monica Andrade (P81921)
American Civil Liberties Union
Fund of Michigan
2966 Woodward Ave.
Detroit, MI 48201
(313) 578-6814
Attorneys for Amicus ACLU of Michigan
Dated: January 29, 2019
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EXHIBIT A: Does II Stipulated Order Granting
Class Certification
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION __________________________________________________________________ JOHN DOES #1-6, on behalf of themselves and all others similarly situated, File No. 2:16-cv-13137 Plaintiffs, v. Hon. Robert H. Cleland RICHARD SNYDER, Governor of the Mag. Judge David R. Grand State of Michigan, and COL. KRISTE ETUE, Director of the Michigan State Police, in their official capacities, Defendants. __________________________________________________________________
STIPULATED ORDER GRANTING CLASS CERTIFICATION
The parties, by counsel, stipulate to an order granting class certification,
though slightly modifying the class definitions set forth in the plaintiffs’ second
amended complaint (ECF #34) and in the plaintiffs’ motion for class certification
(ECF #35). The defendants’ consent to certification is limited to the currently
operative version of Michigan’s Sex Offenders Registration Act (SORA). Should
the legislature amend SORA, the parties are free to return to this Court to
propose, either jointly or separately, modification or termination of this
certification order if appropriate in light of any such legislative changes. This
certification order will remain operative pending the Court’s ruling on any such
requests.
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The parties agree, and the Court orders, as follows:
1. The plaintiffs’ motion for class certification is granted, as set forth below.
2. The Court certifies a “primary class” defined as all people who are or will
be subject to registration under Michigan’s Sex Offenders Registration Act.
3. The Court, pursuant to the agreement of the parties, certifies not one but
two “ex post facto” sub-classes, defined as follows:
a. The “pre-2006 ex post facto subclass” is defined as members of the primary class who committed their offense or offenses requiring registration before January 1, 2006, and who have committed no registrable offense since.
b. The “2006-2011 ex post facto subclass” is defined as members of the
primary class who committed their offense or offenses requiring registration on or after January 1, 2006, but before April 12, 2011, and who have committed no registrable offense since.
4. The primary class seeks relief on Count I (vagueness); Count II (strict
liability), and Count III (First Amendment).
5. The two ex post facto subclasses seek relief on Count IV (ex post facto
violation).
6. The Court finds that, as to the primary class and the two subclasses, the
requirements of Fed. R. Civ. P. 23(a) are met because (1) the class and subclasses
are so numerous that joinder of all members is impracticable, (2) there are
questions of law or fact common to the class and subclasses, (3) the claims or
defenses of the representative parties are typical of the claims or defenses of the
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class and subclasses, and (4) the representative plaintiffs will fairly and
adequately protect the interests of the class and subclasses.
7. The Court finds that, as to the primary class and the two subclasses, the
requirements of Fed. R. Civ. P. 23(b)(1)(A) are met because prosecuting separate
actions by or against individual class members would create a risk of
“inconsistent or varying adjudications with respect to individual class members
that would establish incompatible standards of conduct for the party opposing the
class”. Fed. R. Civ. P. 23(b)(1)(A).
8. The Court finds that, as to the primary class and the two subclasses, the
requirements of Fed. R. Civ. P. 23(b)(2) are met because the party opposing the
class has acted or refused to act on grounds that apply generally to the class, so
that final injunctive relief would be appropriate respecting the class as a whole if
plaintiffs prevail in demonstrating that those actions or inactions violate plaintiffs’
rights.
9. Plaintiffs John Does #1-6 are named as class representatives for the
primary class.
10. Plaintiffs John Doe # 1, John Doe #2 and John Doe #3 are named as class
representatives for the pre-2006 ex post facto subclass.
11. Plaintiffs John Doe # 4 and John Doe # 5 are named as class
representatives for the 2006-2011 ex post facto subclass.
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12. The Court finds that plaintiffs’ counsel are qualified to handle this class
action litigation and will zealously prosecute the case for the class. The Court
therefore appoints Miriam Aukerman, Alyson Oliver, and Paul Reingold as class
counsel under Fed. R. Civ. P. 23(g). In appointing Ms. Aukerman, Ms. Oliver and
Mr. Reingold as class counsel, the Court has considered the factors set out Fed. R.
Civ. P. 23(g)(1)(A)(i)-(iv).
13. Because this order converts one ex post facto subclass into two sub-
classes, all references in the plaintiffs’ second amended complaint to the “ex post
facto subclass” should be read as saying the “ex post facto subclasses.” The
amended subclass definitions set forth in this order shall control.
14. By creating two discrete ex post facto subclasses, the parties and the
Court will be able to tailor with specificity any relief on the ex post facto claim to
Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016), based on which SORA
amendments are being applied retroactively to which registrants.
15. By stipulating to this order, the plaintiffs, and the class members they
represent, are not waiving any claims with respect to other causes of action or
other forms of relief which they have not pled in this action for declaratory and
injunctive relief.
SO ORDERED. S/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE
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Dated: September 11, 2018 I hereby certify that a copy of the foregoing document was mailed to counsel of record and/or pro se parties on this date, September 11, 2018, by electronic and/or ordinary mail.
S/Lisa Wagner Case Manager and Deputy Clerk (810) 292-6522
Dated: September 6, 2018 Approved by: s/ Miriam Aukerman (P63165) Attorney for Plaintiffs American Civil Liberties Union Fund of Michigan 1514 Wealthy SE, Suite 242 Grand Rapids, MI 49506 (616) 301-0930 - [email protected] s/ Alyson L. Oliver (P55020) Co-counsel for Plaintiffs Oliver Law Group, PC 363 W. Big Beaver Rd., Suite 200 Troy, MI 48226 (248) 327-6556 - [email protected] s/ Paul D. Reingold (P27594) Co-counsel for Plaintiffs Michigan Clinical Law Program 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 – [email protected]
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s/ Adam Sadowski (P73864) s/ Jared D. Schultz (P80198) Attorneys for Defendants Michigan Dept. of Attorney General 525 West Ottawa Street P.O. Box 30736 Lansing, MI 48933-1067 (517) 373-6434 – [email protected] (517) 373-6434 – [email protected]
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EXHIBIT B: October 10, 2018 Aukerman Letter
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October 10, 2018 * Via e-mail: [email protected] * Adam Sadowski Michigan Department of Attorney General P.O. Box 30736 Lansing, MI 48909 Re: Does #1-6 v. Snyder For Settlement Purposes only; Subject to Fed. R. Evid. 408. Dear Mr. Sadowski, We look forward to sitting down with you, your colleagues from the Attorney General’s office, and representatives from both the Governor’s Office and the Michigan State Police to discuss a potential resolution in Does #1-6 v. Snyder (Does II). We write in advance of that meeting to share our thoughts about the framework for those conversations. For the reasons set out below, we would like to focus our settlement discussions on developing proposed legislation that the parties can jointly send to the legislature. Does II presents a unique opportunity to address the systemic problems with Michigan’s registry – problems that have long been acknowledged but that have been difficult to address. Moreover, a legislative solution will not only serve the parties’ goals, but may well be required to resolve this litigation. We believe that there is no current SORA statute for 2011 registrants because the 2011 amendments to SORA are not severable. If SORA does still apply to pre-2011 registrants, then they have no way to know their obligations under the law unless SORA is amended. Either way, we think the Court will find that the statute must be rewritten.
Michigan’s Registry Is Broken and Ineffective. In Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016) (Does I), the Sixth Circuit, after reviewing the extensive evidence developed there, found:
[T]he record before us provides scant support for the proposition that SORA in fact accomplishes its professed goals. The record below gives a thorough accounting of the significant doubt cast by recent empirical studies on the pronouncement in Smith that “[t]he risk of recidivism posed by sex offenders is ‘frightening and high.’” [Smith v. Doe,] 538 U.S. 92, 103, 123 S.Ct. 1140 (quoting McKune v. Lile, 536 U.S. 24, 34, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002)). One
State Headquarters 2966 Woodward Avenue Detroit, MI 48201 Phone 313.578.6800 Fax 313.578.6811 E-mail [email protected] www.aclumich.org
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study suggests that sex offenders (a category that includes a great diversity of criminals, not just pedophiles) are actually less likely to recidivate than other sorts of criminals. See Lawrence A. Greenfield, Recidivism of Sex Offenders Released from Prison in 1994 (2003). Even more troubling is evidence in the record supporting a finding that offense-based public registration has, at best, no impact on recidivism. In fact, one statistical analysis in the record concluded that laws such as SORA actually increase the risk of recidivism, probably because they exacerbate risk factors for recidivism by making it hard for registrants to get and keep a job, find housing, and reintegrate into their communities. See Prescott & Rockoff, supra at 161. Tellingly, nothing the parties have pointed to in the record suggests that the residential restrictions have any beneficial effect on recidivism rates…. Further, while the statute’s efficacy is at best unclear, its negative effects are plain on the law’s face. As explained above, SORA puts significant restrictions on where registrants can live, work, and “loiter,” but the parties point to no evidence in the record that the difficulties the statute imposes on registrants are counterbalanced by any positive effects. Indeed, Michigan has never analyzed recidivism rates despite having the data to do so. The requirement that registrants make frequent, in-person appearances before law enforcement, moreover, appears to have no relationship to public safety at all. The punitive effects of these blanket restrictions thus far exceed even a generous assessment of their salutary effects.
Id at 704-05. The crux of the Sixth Circuit’s holding was that Michigan’s registry is so ineffective that it is unconstitutional.
Michigan Legislators and Government Officials Are Looking for a Solution to Michigan’s Broken Registry.
Both legislators and responsible government officials are well aware that the registry is broken, and have been talking for years about registry reform. Recognizing that the Sixth Circuit’s decision in Does I requires the law to be rewritten, Senator Rick Jones tasked a legislative working group to bring together stakeholders and come up with recommendations for rewriting SORA. That working group has met multiple times over the last two years, and has identified several areas of broad agreement. First, there is general agreement that the registry is bloated, and needs to be pared down to focus on those who actually present a risk. Michigan has nearly 44,000 registrants, with 2,000 more people – or about 5 a day – added each year. There are more people on the registry than live in the cities of Muskegon, or Port Huron, or Mt. Pleasant. The size of the registry alone makes it ineffective. Law enforcement officials cannot concentrate their resources on those individuals who truly present a risk to the public, but instead must devote considerable time and effort to tracking tens of thousands of registrants, many of whom are no more likely to offend than the
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general population.1 Likewise, the size of the public registry makes it much more difficult for the public to discern which individuals truly present a danger. Second, there is general agreement that paring down the registry requires three things. It requires reducing the number of people subject to registration by, for example, eliminating registration requirements for children, for youth who complete diversion programs, and for people who were not convicted of sex offenses. It requires shortening registration terms significantly. And it requires creating a path off the public registry. Third, there is general agreement that some of SORA’s most onerous requirements should be eliminated entirely, or at least scaled back to target only a narrow group of registrants. For example, Department of Corrections representatives have emphasized during the work group meetings how SORA’s restrictions on where registrants can live and work have made it much more difficult to find suitable and supportive parole placements for prisoners returning to the community, thereby increasing rather than decreasing the public safety risk. Finally, there is general recognition that any revised statute must remedy the constitutional flaws that courts have identified with SORA. These include the ex post facto issues identified by the Sixth Circuit and the problems with the geographic exclusion zones, reporting requirements, and strict liability identified by the district court. These working group conversations have been quite productive, although of course many details remain to be negotiated. We are optimistic that the work group could come up with a workable proposal for new legislation. That has not been the obstacle to legislation. Rather, the reason we have not seen legislation passed to reform the registry is that the issue is a politically difficult one. Both legislators and government officials recognize the need for reform, and the need to bring the law into compliance with court rulings. Yet both are hesitant to promote such revisions because there is such public misunderstanding of these issues. The Does II class action provides an important opportunity for the legislature to reform the law. Indeed, we think the legislature must pass a new statute in order to resolve the litigation. As set out below, because the 2011 SORA amendments likely are not severable, and because SORA is incomprehensible in their absence, the chances are high that SORA must be rewritten. The only questions are: 1) how much litigation will have to occur before that occurs; and 2) what will the new statute look like.
1 As the record in Does I makes clear, the baseline risk for a new sex offense is about 3% in the general male population. From the outset, low-risk former sex offenders have a lower risk of committing a new sex offense than a baseline group of non-sex offenders. Even medium-to-high risk offenders become less likely to offend than the baseline of non-sex offenders over time. Individuals who reoffend usually do so within three-to-five years. See Does I, Joint Statement of Facts, ECF 90, Pg. 3787-3808.
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Because the 2011 Amendments Are Not Severable, There Is No Current SORA Statute for Pre-2011 Registrants.
As you know, the Sixth Circuit held that “retroactive application of SORA’s 2006 and 2011 amendments … is unconstitutional, and it must therefore cease.” Does I, 834 F.3d at 706. While we believe the 2006 amendments are severable, we think the 2011 amendments are not. In Does II, we have asked the Court to hold that the 2011 amendments cannot be severed, and that therefore SORA is null and void as applied to people subjected to registration for offenses predating April 12, 2011. Second Amended Complaint, ¶ G, ECF 34, Pg.ID# 389. If the Court grants that relief, then pre-2011 registrants could not be required to register at all unless or until the legislature passes a new law. Instead of waiting for that outcome, there are good reasons for the plaintiffs, the defendants, and the legislature to act now. While we have a principled position against registration because we believe it is ineffective and punitive, we acknowledge that the courts would likely uphold a more limited registration statute under Smith and Does I. Accordingly we are willing to reach a settle-ment that would resolve Does II through passage of new legislation that does require registration for pre-2011 registrants (although we would want to reduce the number subject to registration). The defendants and the legislature are both presumably interested in avoiding a severability ruling that would result in tens of thousands of registrants being removed from the registry. While the legislature might then slap together a new statute, any such hastily-adopted law is likely to be vulnerable to further constitutional challenges. And it is unlikely to be effective in serving public safety goals. A considered process that allows for stakeholder input and legal analysis during the drafting phase is much more likely to produce wise statutory revisions. It is precisely because we want to give that legislative process time that we have not yet sought a court ruling on the severability question. We are, however, confident that we can prevail on severability. Michigan law holds that while a court should interpret a statute to sustain its constitutionality if possible even when certain of its provisions have been found to be unconstitutional, “the valid portion of the statute must be independent of the invalid sections, forming a complete act within itself.” Pletz v. Sec’y of State, 125 Mich. App. 335, 375, 336 N.W.2d 789 (1983). When the objective of the act can be achieved without the invalid part, the act should be upheld. Republic Airlines, Inc. v. Dep’t of Treasury, 169 Mich. App. 674, 427 N.W.2d 182 (1988). But if the “unconstitutional portions are so entangled with the others that they cannot be removed without adversely affecting the opera-tion of the act,” then the court must find that the act as a whole is unconstitutional. Blank v. Dep’t of Corr., 462 Mich. 103, 611 N.W.2d 530, 540 (2000). When passing a statute, a legislature can opt to include a severability clause that “provides a rule of construction which may sometimes aid in determining legislative intent.” Dorchy v. Kansas, 264 U.S. 286, 290 (1924). Such a clause “has the effect of reversing the presumption which would otherwise be indulged, of an intent that, unless the act operates as an entirety, it shall be wholly ineffective.” Railroad Retirement Board, 295 U.S. at 362 (1935). SORA does not contain
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its own severability clause.2 The Michigan legislature, however, has enacted a general severability provision, which states:
In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature, that is to say: If any portion of an act or the application thereof to any person or circumstances shall be found to be invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can be given effect without the invalid portion or application, provided such remaining portions are not determined by the court to be inoperable, and to this end acts are declared to be severable.
M.C.L. § 8.5 (emphasis added). Thus the question under M.C.L. § 8.5 is whether, if the 2011 amendments are stricken from the statute, the remaining portions can function on their own.3 They cannot. Once the 2011 amendments are stricken, the remaining provisions are not “other-wise complete in [themselves] and [are not] capable of being carried out without reference to the unconstitutional [sections],” Blank, 462 Mich. at 123 (quoting Maki v. East Tawas, 385 Mich. 151, 159, 188 N.W.2d 593 (1971)). Therefore, any attempt to sever the 2011 SORA amend-ments leaves the statute inoperable within the meaning of M.C.L. § 8.5. To understand how central the 2011 amendments are to SORA, it is important to remember that SORA was entirely rewritten in 2011. Indeed, as the highlighted attached version of the statutory changes shows, the 2011 amendments make up nearly half of the current law. See Exhibit A. The 2011 amendments created a 3-tier system that classifies registrants based on their offenses. Key definitional terms, which are used throughout the statute and trigger SORA’s obligations, were added or rewritten. For example, Mich. Pub. Act 17, § 3 (2011), codified as M.C.L. § 28.723, specifies who must register (namely those convicted of “listed offenses”). Section (2)(k) of the act, codified as M.C.L. § 28.722(k), defines “listed offense” to mean “a tier I, tier II, or tier III offense.” Similarly, § 5(10)-(12), codified as M.C.L. § 28.725(10)-(12), keys the length of
2 M.C.L. § 28.728(8) does provide that if public availability of SORA information is unconstitutional, the Michigan State Police must revise the website so that it does not contain that information. 3 We believe that the 2006 amendments can be severed from the statute, because those amend-ments are self-contained. The 2006 “student safety zone” legislation was codified as M.C.L. §§ 28.733-736. In addition, Mich. Pub. Act 46, § 10(3) (2006) amended SORA to allow subscribing members of the public to be notified by email when a person registers or moves into a specified zip code. That provision was codified as M.C.L. § 28.730(3). Because these amendments are separately codified, it is a relatively easy, as a legal matter, to sever M.C.L. §§ 28.733-736 and M.C.L. § 28.730(3): those sections simply cannot be applied to registrants whose offenses predate the enactment of those sections. There are, however, practical issues to work out to ensure the state’s compliance. For example, with respect to M.C.L. § 28.730(3), the state will have to remove the email-subscription feature from the public website for people with pre-2006 crimes (or if that is not possible, remove those registrants from the public website).
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registration to one’s tier classification, and § 5a(3), codified as M.C.L. § 28.725a(3), keys the frequency of registration to a registrant’s tier classification. Because the 2011 amendments are so deeply embedded in the statute, there is no way to excise them and leave behind a statute that can be given effect without the stricken language. For exam-ple, the basic verification requirements set out in M.C.L. § 28.725a require Tier I registrants to report once a year, Tier II registrants to report twice a year, and Tier III registrants to report quarterly. If one removes the language about tiering, the statute does not specify how often a registrant must report or when. Similarly, because the duration of registration is keyed to a person’s tier level, M.C.L. § 28.725(10-(12), if one excises the tiering language, the statute does not state how many years a person is subject to SORA. If every piece of SORA that was added in 2011 is excised, the remaining statute is an incomprehensible amalgam of procedural provisions referencing the excised sections. In cases where, as here, the unconstitutional provisions are embedded in the statute, courts regularly find that such provisions are not severable. For example, in Associated Builders & Contractors v. Perry, 869 F. Supp. 1239, 1254 (E.D. Mich. 1994) (Cleland, J.), rev’d on other grounds, 115 F.3d 386 (6th Cir. 1997), the court held that part of Michigan’s Prevailing Wage Act was preempted by federal law, and that the impermissible sections were so interwoven with the permissible provisions that they were not severable. The Court found that what would be left of the statute after severance of the preempted provisions would not comport with the intent of the Michigan legislature, and therefore the statute was unenforceable in its entirety. Id. See also In re Apportionment of State Legislature – 1982, 413 Mich. 96; 321 N.W.2d 565, 582 (1982) (holding that once the state apportionment formula was declared to be illegal, “all the appor-tionment rules fell because they are inextricably related,” and therefore not severable). The argument against severability here is even stronger because the 2011 amendments were a total rewrite of the law, so that excising them would leave a nonsensical alphabet soup of a law, incomprehensible to registrants and police agencies alike. The amendments “are not like a collection of bricks, some of which may be taken away without disturbing the [provisions as they existed before], but rather are like the interwoven threads constituting the warp and woof of a fabric, one set of which cannot be removed without fatal consequences to the whole.” Carter v. Carter Coal Co., 298 U.S. 238, 315–16 (1936).
Unless SORA Is Rewritten, the Statute Will Be Unconstitutionally Vague as Applied to Pre-2011 Registrants.
The severability problems are interwoven with vagueness problems. A statute is unconstitution-ally vague if it (1) does not provide a person of ordinary intelligence notice of what conduct is prohibited, and (2) does not provide clear guidance for those who enforce its prohibitions. Kolender v. Lawson, 461 U.S. 352, 357 (1983). These requirements reflect the two primary goals of the void for vagueness doctrine: first, “to ensure fair notice to the citizenry,” and second, “to provide standards of enforcement by the police, judges, and juries.” Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1104 (6th Cir. 1995). Because a person must be “free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act according-
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ly.” Grayned v. City of Rockord, 408 U.S. 104, 108 (1972). “[S]o far as possible the line [between criminal and non-criminal conduct] should be clear.” McBoyle v. United States, 283 U.S. 25, 27 (1931). As the examples in the preceding section demonstrate, absent a rewrite of the statute, neither registrants nor law enforcement can understand what registrants’ requirements are. Because the 2011 amendments cannot be applied retroactively, the statutory text does not answer even the most basic questions, like when or for how long a registrant must register. Moreover, as the Sixth Circuit noted, SORA has “grown into a byzantine code governing in minute detail the lives of the state’s sex offenders.” Does I, 834 F.3d at 697. Unless the statute is rewritten, registrants will have no way to know which of those provisions apply to them, and which do not. Nor will law enforcement know whether a registrant is or is not compliant with SORA’s hundreds of require-ments unless the officer first searches the legislative history to determine, for example, when the requirements to provide employer information or telephone number were added to the statute. In sum, because the 2011 amendments cannot be retroactively applied, and because the statute is unintelligible without them, SORA must be amended. Not amending it will inevitably lead to failed prosecutions, Section 1983 litigation for wrongful arrests, and affirmative civil litigation on vagueness grounds.
Creating Different Registration Schemes for Different Registrants Would Result in Mass Confusion for Both Registrants and Law Enforcement.
In addition to the legal challenges presented by the severability and vagueness problems with the existing statute, any effort to comply with Does I without amending the statute also presents significant practical problems. Our understanding, based on preliminary conversations, is that in order to come into compliance with Does II, the state is contemplating what would essentially amount to three registration schemes: one for pre-2006 registrants, one for 2006-2011 registrants, and one for post-2011 registrants. This makes no sense. Adopting a system where different rules apply to different registrants would inevitably lead to mass confusion for both registrants and law enforcement. As the evidence in Does I established, even now many registrants and law enforcement officers have no idea what SORA does or does not require. Making those requirements even more complex is a recipe for disaster, particularly because the statute itself will not answer any questions about what is or is not permitted. Again, this will inevitably lead to failed prosecutions, Section 1983 litigation for wrongful arrests, and affirmative civil litigation on vagueness grounds.
Absent Comprehensive Reform, Litigation on SORA Will Continue
As the Attorney General’s Office is well aware, there are dozens of lawsuits challenging SORA. A partial list, which we included in our Does II filings, is attached as Exhibit B. This trend is being repeated across the country, and registrants are increasingly successful in challenging registries and registration requirements using a wide variety of legal theories. See, e.g. Packing-ham v. North Carolina, 137 S. Ct. 1730 (2017) (internet restrictions on sex offenders violates the First Amendment); Doe v. Cooper, 842 F.3d 833 (4th Cir. 2016) (presence restrictions were
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overbroad and unconstitutionally vague, and violated First Amendment); Brown v. Montoya, 662 F.3d 1152 (10th Cir. 2011) (procedural due process); Millard v. Rankin, 265 F.Supp.3d 1211 (D. Col. 2017) ) (registry imposes cruel and unusual punishment and violates procedural due process); Doe v. Jindal, 851 F. Supp.2d 995 (E.D. La. 2012) (equal protection violated based on how state defined who has to register); Doe v. Anderson, 108 A.3d 378 (Me. 2015) (registration imposes punishment outside of the judicial process and functions as a bill of attainder); Commonwealth of Pennsylvania v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (mechanism for classifying individuals as sexually violent predators unconstitutional); In re J.B., 107 A.3d 1 (Pa. 2014) (juvenile registration unconstitutional because it creates an irrebuttable presumption of dangerousness). In Does II, the plaintiffs have brought only four claims: an ex post facto claim, a due process vagueness claim, a due process strict liability claim, and a First Amendment internet claim. We chose those claims because they were claims we already won in Does I, and therefore all that is required in Does II is to apply the prior wins on a class wide basis. Let us, however, be very clear: those are far from the only constitutional problems that we and other attorneys identify in SORA. The state should have a strong interest both in avoiding piece-meal litigation and in remedying other constitutional flaws in the statute. While no law will be entirely immune from challenge, by using this opportunity for comprehensive reform, the state can significantly reduce the risk of future litigation.
The Parties Should Work Toward a Joint Legislative Proposal, Passage of Which Would Resolve This Litigation.
The basic problem that we face in Does II – a problem that we hope we can tackle together – is that resolving the case requires what is “quintessentially legislative work.” Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329 (2006). Because of the severability issues, and because of the resulting vagueness problems, the statute has to be rewritten. It is hard for us to see how we could resolve Does II without a new law that makes clear to the 44,000 class members we represent what conduct is or is not a crime. We recognize that if our negotiations fail, Judge Cleland will not be able to “‘rewrit[e] state law to conform it to constitutional requirements.’” Id. (quoting Virginia v. American Book-sellers Ass’n, Inc., 484 U.S. 383, 397 (1988)). But he can find the statute null and void because of the severability problems, at which point the legislature will – if it wants to register any pre-2011 registrants – have to act. Even more importantly, this litigation presents an opportunity to make long overdue changes to SORA, changes that it might otherwise be politically difficult to make. Accordingly, we believe the best chance for success in our negotiations is to focus on developing proposed legislation that the parties would jointly send to the legislature. If the legislature passes the bill package, that would resolve the litigation. Presumably resolving Does II would be a significant incentive for the bills to go through. If the legislature does not pass the bills, we would return to litigation. The Sixth Circuit’s ex post facto ruling is, of course, binding on Judge Cleland, and we believe he will also reaffirm his prior
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Does I rulings on vagueness, the First Amendment, and strict liability. Moreover, given his past rulings on severability, we believe he will decide that the current statute is null and void for pre-2011 registrants. We could all avoid a lot of litigation and expense by working on revising the statute before, rather than after, a severability ruling. And we could bring all of the stakeholders together to develop legislation that actually enhances, rather than undermines, public safety. In sum, we hope that the parties can come together – and bring in legislators and other stake-holders as the conversations progress – to make the most of the opportunity that Does II presents. Best regards, /s/ Miriam Aukerman /s/ Paul Reingold Senior Staff Attorney Michigan Clinical Law Program ACLU Fund of Michigan /s/ Alyson Oliver Oliver Law Group
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Exhibit A: SORA with 2006 and 2011 Amendments Highlighted
(Text added in 2006 is highlighted in yellow. Text added in 2011 is highlighted in purple.)
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SEX OFFENDERS REGISTRATION ACTAct 295 of 1994
AN ACT to require persons convicted of certain offenses to register; to prohibit certain individuals fromengaging in certain activities within a student safety zone; to prescribe the powers and duties of certaindepartments and agencies in connection with that registration; and to prescribe fees, penalties, and sanctions.
History: 1994, Act 295, Eff. Oct. 1, 1995;Am. 2004, Act 237, Eff. Oct. 16, 2004;Am. 2005, Act 121, Eff. Jan. 1, 2006;Am.2005, Act 127, Eff. Jan. 1, 2006.
The People of the State of Michigan enact:
  IGENERAL
28.721 Short title.Sec. 1. This act shall be known and may be cited as the “sex offenders registration act”.History: 1994, Act 295, Eff. Oct. 1, 1995.
28.721a Legislative declarations; determination; intent.Sec. 1a. The legislature declares that the sex offenders registration act was enacted pursuant to the
legislature's exercise of the police power of the state with the intent to better assist law enforcement officersand the people of this state in preventing and protecting against the commission of future criminal sexual actsby convicted sex offenders. The legislature has determined that a person who has been convicted ofcommitting an offense covered by this act poses a potential serious menace and danger to the health, safety,morals, and welfare of the people, and particularly the children, of this state. The registration requirements ofthis act are intended to provide law enforcement and the people of this state with an appropriate,comprehensive, and effective means to monitor those persons who pose such a potential danger.
History: Add. 2002, Act 542, Eff. Oct. 1, 2002.
28.722 Definitions.Sec. 2. As used in this act:(a) "Aircraft" means that term as defined in section 2 of the aeronautics code of the state of Michigan, 1945
PA 327, MCL 259.2.(b) "Convicted" means 1 of the following:(i) Having a judgment of conviction or a probation order entered in any court having jurisdiction over
criminal offenses, including, but not limited to, a tribal court or a military court, and including a convictionsubsequently set aside under 1965 PA 213, MCL 780.621 to 780.624.
(ii) Either of the following:(A) Being assigned to youthful trainee status under sections 11 to 15 of chapter II of the code of criminal
procedure, 1927 PA 175, MCL 762.11 to 762.15, before October 1, 2004. This sub-subparagraph does notapply if a petition was granted under section 8c at any time allowing the individual to discontinue registrationunder this act, including a reduced registration period that extends to or past July 1, 2011, regardless of thetier designation that would apply on and after that date.
(B) Being assigned to youthful trainee status under sections 11 to 15 of chapter II of the code of criminalprocedure, 1927 PA 175, MCL 762.11 to 762.15, before October 1, 2004 if the individual is convicted of anyother felony on or after July 1, 2011.
(iii) Having an order of disposition entered under section 18 of chapter XIIA of the probate code of 1939,1939 PA 288, MCL 712A.18, that is open to the general public under section 28 of chapter XIIA of theprobate code of 1939, 1939 PA 288, MCL 712A.28, if both of the following apply:
(A) The individual was 14 years of age or older at the time of the offense.(B) The order of disposition is for the commission of an offense that would classify the individual as a tier
III offender.(iv) Having an order of disposition or other adjudication in a juvenile matter in another state or country if
both of the following apply:(A) The individual is 14 years of age or older at the time of the offense.(B) The order of disposition or other adjudication is for the commission of an offense that would classify
the individual as a tier III offender.(c) "Custodial authority" means 1 or more of the following apply:
Rendered Wednesday, October 26, 2016 Page 1 Michigan Compiled Laws Complete Through PA 313 of 2016
Legislative Council, State of Michigan Courtesy of www.legislature.mi.gov
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(i) The actor was a member of the same household as the victim.(ii) The actor was related to the victim by blood or affinity to the fourth degree.(iii) The actor was in a position of authority over the victim and used this authority to coerce the victim to
submit.(iv) The actor was a teacher, substitute teacher, or administrator of the public school, nonpublic school,
school district, or intermediate school district in which that other person was enrolled.(v) The actor was an employee or a contractual service provider of the public school, nonpublic school,
school district, or intermediate school district in which that other person was enrolled, or was a volunteer whowas not a student in any public school or nonpublic school, or was an employee of this state or of a local unitof government of this state or of the United States assigned to provide any service to that public school,nonpublic school, school district, or intermediate school district, and the actor used his or her employee,contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
(vi) That other person was under the jurisdiction of the department of corrections and the actor was anemployee or a contractual employee of, or a volunteer with, the department of corrections who knew that theother person was under the jurisdiction of the department of corrections and used his or her position ofauthority over the victim to gain access to or to coerce or otherwise encourage the victim to engage in sexualcontact.
(vii) That other person was under the jurisdiction of the department of corrections and the actor was anemployee or a contractual employee of, or a volunteer with, a private vendor that operated a youthcorrectional facility under section 20g of the corrections code of 1953, 1953 PA 232, MCL 791.220g, whoknew that the other person was under the jurisdiction of the department of corrections.
(viii) That other person was a prisoner or probationer under the jurisdiction of a county for purposes ofimprisonment or a work program or other probationary program and the actor was an employee or acontractual employee of, or a volunteer with, the county or the department of corrections who knew that theother person was under the county's jurisdiction and used his or her position of authority over the victim togain access to or to coerce or otherwise encourage the victim to engage in sexual contact.
(ix) The actor knew or had reason to know that a court had detained the victim in a facility while the victimwas awaiting a trial or hearing, or committed the victim to a facility as a result of the victim having beenfound responsible for committing an act that would be a crime if committed by an adult, and the actor was anemployee or contractual employee of, or a volunteer with, the facility in which the victim was detained or towhich the victim was committed.
(d) "Department" means the department of state police.(e) "Employee" means an individual who is self-employed or works for any other entity as a full-time or
part-time employee, contractual provider, or volunteer, regardless of whether he or she is financiallycompensated.
(f) "Felony" means that term as defined in section 1 of chapter I of the code of criminal procedure, 1927PA 174, MCL 761.1.
(g) "Immediately" means within 3 business days.(h) "Indigent" means an individual to whom 1 or more of the following apply:(i) He or she has been found by a court to be indigent within the last 6 months.(ii) He or she qualifies for and receives assistance from the department of human services food assistance
program.(iii) He or she demonstrates an annual income below the current federal poverty guidelines.(i) "Institution of higher education" means 1 or more of the following:(i) A public or private community college, college, or university.(ii) A public or private trade, vocational, or occupational school.(j) "Listed offense" means a tier I, tier II, or tier III offense.(k) "Local law enforcement agency" means the police department of a municipality.(l) "Minor" means a victim of a listed offense who was less than 18 years of age at the time the offense was
committed.(m) "Municipality" means a city, village, or township of this state.(n) "Registering authority" means the local law enforcement agency or sheriff's office having jurisdiction
over the individual's residence, place of employment, or institution of higher learning, or the nearestdepartment post designated to receive or enter sex offender registration information within a registrationjurisdiction.
(o) "Registration jurisdiction" means each of the 50 states, the District of Columbia, the Commonwealth ofPuerto Rico, Guam, the Northern Mariana Islands, the United States Virgin Islands, American Samoa, and theIndian tribes within the United States that elect to function as a registration jurisdiction.Rendered Wednesday, October 26, 2016 Page 2 Michigan Compiled Laws Complete Through PA 313 of 2016
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(p) "Residence", as used in this act, for registration and voting purposes means that place at which a personhabitually sleeps, keeps his or her personal effects, and has a regular place of lodging. If a person has morethan 1 residence, or if a wife has a residence separate from that of the husband, that place at which the personresides the greater part of the time shall be his or her official residence for the purposes of this act. If a personis homeless or otherwise lacks a fixed or temporary residence, residence means the village, city, or townshipwhere the person spends a majority of his or her time. This section shall not be construed to affect existingjudicial interpretation of the term residence for purposes other than the purposes of this act.
(q) "Student" means an individual enrolled on a full- or part-time basis in a public or private educationalinstitution, including, but not limited to, a secondary school, trade school, professional institution, orinstitution of higher education.
(r) "Tier I offender" means an individual convicted of a tier I offense who is not a tier II or tier III offender.(s) "Tier I offense" means 1 or more of the following:(i) A violation of section 145c(4) of the Michigan penal code, 1931 PA 328, MCL 750.145c.(ii) A violation of section 335a(2)(b) of the Michigan penal code, 1931 PA 328, MCL 750.335a, if a victim
is a minor.(iii) A violation of section 349b of the Michigan penal code, 1931 PA 328, MCL 750.349b, if the victim is
a minor.(iv) A violation of section 449a(2) of the Michigan penal code, 1931 PA 328, MCL 750.449a.(v) A violation of section 520e or 520g(2) of the Michigan penal code, 1931 PA 328, MCL 750.520e and
750.520g, if the victim is 18 years or older.(vi) A violation of section 539j of the Michigan penal code, 1931 PA 328, MCL 750.539j, if a victim is a
minor.(vii) Any other violation of a law of this state or a local ordinance of a municipality, other than a tier II or
tier III offense, that by its nature constitutes a sexual offense against an individual who is a minor.(viii) An offense committed by a person who was, at the time of the offense, a sexually delinquent person
as defined in section 10a of the Michigan penal code, 1931 PA 328, MCL 750.10a.(ix) An attempt or conspiracy to commit an offense described in subparagraphs (i) to (viii).(x) An offense substantially similar to an offense described in subparagraphs (i) to (ix) under a law of the
United States that is specifically enumerated in 42 USC 16911, under a law of any state or any country, orunder tribal or military law.
(t) "Tier II offender" means either of the following:(i) A tier I offender who is subsequently convicted of another offense that is a tier I offense.(ii) An individual convicted of a tier II offense who is not a tier III offender.(u) "Tier II offense" means 1 or more of the following:(i) A violation of section 145a of the Michigan penal code, 1931 PA 328, MCL 750.145a.(ii) A violation of section 145b of the Michigan penal code, 1931 PA 328, MCL 750.145b.(iii) A violation of section 145c(2) or (3) of the Michigan penal code, 1931 PA 328, MCL 750.145c.(iv) A violation of section 145d(1)(a) of the Michigan penal code, 1931 PA 328, MCL 750.145d, except
for a violation arising out of a violation of section 157c of the Michigan penal code, 1931 PA 328, MCL750.157c.
(v) A violation of section 158 of the Michigan penal code, 1931 PA 328, MCL 750.158, committed againsta minor unless either of the following applies:
(A) All of the following:(I) The victim consented to the conduct constituting the violation.(II) The victim was at least 13 years of age but less than 16 years of age at the time of the violation.(III) The individual is not more than 4 years older than the victim.(B) All of the following:(I) The victim consented to the conduct constituting the violation.(II) The victim was 16 or 17 years of age at the time of the violation.(III) The victim was not under the custodial authority of the individual at the time of the violation.(vi) A violation of section 338, 338a, or 338b of the Michigan penal code, 1931 PA 328, MCL 750.338,
750.338a, and 750.338b, committed against an individual 13 years of age or older but less than 18 years ofage. This subparagraph does not apply if the court determines that either of the following applies:
(A) All of the following:(I) The victim consented to the conduct constituting the violation.(II) The victim was at least 13 years of age but less than 16 years of age at the time of the violation.(III) The individual is not more than 4 years older than the victim.(B) All of the following:
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(I) The victim consented to the conduct constituting the violation.(II) The victim was 16 or 17 years of age at the time of the violation.(III) The victim was not under the custodial authority of the individual at the time of the violation.(vii) A violation of section 462e(a) of the Michigan penal code, 1931 PA 328, MCL 750.462e.(viii) A violation of section 448 of the Michigan penal code, 1931 PA 328, MCL 750.448, if the victim is a
minor.(ix) A violation of section 455 of the Michigan penal code, 1931 PA 328, MCL 750.455.(x) A violation of section 520c, 520e, or 520g(2) of the Michigan penal code, 1931 PA 328, MCL
750.520c, 750.520e, and 750.520g, committed against an individual 13 years of age or older but less than 18years of age.
(xi) A violation of section 520c committed against an individual 18 years of age or older.(xii) An attempt or conspiracy to commit an offense described in subparagraphs (i) to (xi).(xiii) An offense substantially similar to an offense described in subparagraphs (i) to (xii) under a law of
the United States that is specifically enumerated in 42 USC 16911, under a law of any state or any country, orunder tribal or military law.
(v) "Tier III offender" means either of the following:(i) A tier II offender subsequently convicted of a tier I or II offense.(ii) An individual convicted of a tier III offense.(w) "Tier III offense" means 1 or more of the following:(i) A violation of section 338, 338a, or 338b of the Michigan penal code, 1931 PA 328, MCL 750.338,
750.338a, and 750.338b, committed against an individual less than 13 years of age.(ii) A violation of section 349 of the Michigan penal code, 1931 PA 328, MCL 750.349, committed against
a minor.(iii) A violation of section 350 of the Michigan penal code, 1931 PA 328, MCL 750.350.(iv) A violation of section 520b, 520d, or 520g(1) of the Michigan penal code, 1931 PA 328, MCL
750.520b, 750.520d, and 750.520g. This subparagraph does not apply if the court determines that the victimconsented to the conduct constituting the violation, that the victim was at least 13 years of age but less than 16years of age at the time of the offense, and that the individual is not more than 4 years older than the victim.
(v) A violation of section 520c or 520g(2) of the Michigan penal code, 1931 PA 328, MCL 750.520c and750.520g, committed against an individual less than 13 years of age.
(vi) A violation of section 520e of the Michigan penal code, 1931 PA 328, MCL 750.520e, committed byan individual 17 years of age or older against an individual less than 13 years of age.
(vii) An attempt or conspiracy to commit an offense described in subparagraphs (i) to (vi).(viii) An offense substantially similar to an offense described in subparagraphs (i) to (vii) under a law of
the United States that is specifically enumerated in 42 USC 16911, under a law of any state or any country, orunder tribal or military law.
(x) "Vehicle" means that term as defined in section 79 of the Michigan vehicle code, 1949 PA 300, MCL257.79.
(y) "Vessel" means that term as defined in section 44501 of the natural resources and environmentalprotection act, 1994 PA 451, MCL 324.44501.
History: 1994, Act 295, Eff. Oct. 1, 1995;Am. 1999, Act 85, Eff. Sept. 1, 1999;Am. 2002, Act 542, Eff. Oct. 1, 2002;Am.2004, Act 240, Eff. Oct. 1, 2004;Am. 2005, Act 301, Eff. Feb. 1, 2006;Am. 2011, Act 17, Eff. July 1, 2011;Am. 2014, Act 328,Eff. Jan. 14, 2015.
  IISEX OFFENDER REGISTRATION
28.723 Individuals required to be registered.Sec. 3. (1) Subject to subsection (2), the following individuals who are domiciled or temporarily reside in
this state or who work with or without compensation or are students in this state are required to be registeredunder this act:
(a) An individual who is convicted of a listed offense after October 1, 1995.(b) An individual convicted of a listed offense on or before October 1, 1995 if on October 1, 1995 he or
she is on probation or parole, committed to jail, committed to the jurisdiction of the department of corrections,or under the jurisdiction of the juvenile division of the probate court or the department of human services forthat offense or is placed on probation or parole, committed to jail, committed to the jurisdiction of thedepartment of corrections, placed under the jurisdiction of the juvenile division of the probate court or familydivision of circuit court, or committed to the department of human services after October 1, 1995 for thatRendered Wednesday, October 26, 2016 Page 4 Michigan Compiled Laws Complete Through PA 313 of 2016
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offense.(c) An individual convicted on or before October 1, 1995 of an offense described in section 2(d)(vi) as
added by 1994 PA 295 if on October 1, 1995 he or she is on probation or parole that has been transferred tothis state for that offense or his or her probation or parole is transferred to this state after October 1, 1995 forthat offense.
(d) An individual from another state who is required to register or otherwise be identified as a sex or childoffender or predator under a comparable statute of that state.
(e) An individual who was previously convicted of a listed offense for which he or she was not required toregister under this act, but who is convicted of any other felony on or after July 1, 2011.
(2) An individual convicted of an offense added on September 1, 1999 to the definition of listed offense isnot required to be registered solely because of that listed offense unless 1 of the following applies:
(a) The individual is convicted of that listed offense on or after September 1, 1999.(b) On September 1, 1999, the individual is on probation or parole, committed to jail, committed to the
jurisdiction of the department of corrections, under the jurisdiction of the family division of circuit court, orcommitted to the department of human services for that offense or the individual is placed on probation orparole, committed to jail, committed to the jurisdiction of the department of corrections, placed under thejurisdiction of the family division of circuit court, or committed to the department of human services on orafter September 1, 1999 for that offense.
(c) On September 1, 1999, the individual is on probation or parole for that offense which has beentransferred to this state or the individual's probation or parole for that offense is transferred to this state afterSeptember 1, 1999.
(d) On September 1, 1999, in another state or country the individual is on probation or parole, committedto jail, committed to the jurisdiction of the department of corrections or a similar type of state agency, underthe jurisdiction of a court that handles matters similar to those handled by the family division of circuit courtin this state, or committed to an agency with the same authority as the department of human services for thatoffense.
(3) A nonresident who is convicted in this state on or after July 1, 2011 of committing a listed offense whois not otherwise described in subsection (1) shall nevertheless register under this act. However, the continuedreporting requirements of this act do not apply to the individual while he or she remains a nonresident and isnot otherwise required to report under this act. The individual shall have his or her photograph taken undersection 5a.
History: 1994, Act 295, Eff. Oct. 1, 1995;Am. 1995, Act 10, Eff. Oct. 1, 1995;Am. 1999, Act 85, Eff. Sept. 1, 1999;Am.2011, Act 17, Eff. July 1, 2011.
28.723a Hearing to determine if individual exempt from registration.Sec. 3a. (1) If an individual pleads guilty to or is found guilty of a listed offense or is adjudicated as a
juvenile as being responsible for a listed offense but alleges that he or she is not required to register under thisact because section 2(u)(v) or (vi) applies or section 2(w)(iv) applies, and the prosecuting attorney disputesthat allegation, the court shall conduct a hearing on the matter before sentencing or disposition to determinewhether the individual is required to register under this act.
(2) The individual has the burden of proving by a preponderance of the evidence in a hearing under thissection that his or her conduct falls within the exceptions described in subsection (1) and that he or she istherefore not required to register under this act.
(3) The rules of evidence, except for those pertaining to privileges and protections set forth in section 520jof the Michigan penal code, 1931 PA 328, MCL 750.520j, do not apply to a hearing under this section.
(4) The prosecuting attorney shall give the victim notice of the date, time, and place of the hearing.(5) The victim of the offense has the following rights in a hearing under this section:(a) To submit a written statement to the court.(b) To attend the hearing and to make a written or oral statement to the court.(c) To refuse to attend the hearing.(d) To attend the hearing but refuse to testify or make a statement at the hearing.(6) The court's decision excusing or requiring the individual to register is a final order of the court and may
be appealed by the prosecuting attorney or the individual as a matter of right.(7) This section applies to criminal and juvenile cases pending on July 1, 2011 and to criminal and juvenile
cases brought on and after that date.History: Add. 2011, Act 17, Imd. Eff. Apr. 12, 2011.
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Sec. 4. (1) Registration of an individual under this act shall proceed as provided in this section.(2) For an individual convicted of a listed offense on or before October 1, 1995 who on or before October
1, 1995 is sentenced for that offense, has a disposition entered for that offense, or is assigned to youthfultrainee status for that offense, the following shall register the individual by December 31, 1995:
(a) If the individual is on probation for the listed offense, the individual's probation agent.(b) If the individual is committed to jail for the listed offense, the sheriff or his or her designee.(c) If the individual is under the jurisdiction of the department of corrections for the listed offense, the
department of corrections.(d) If the individual is on parole for the listed offense, the individual's parole agent.(e) If the individual is within the jurisdiction of the juvenile division of the probate court or the department
of social services under an order of disposition for the listed offense, the juvenile division of the probate courtor the department of social services.
(3) Except as provided in subsection (4), for an individual convicted of a listed offense on or beforeOctober 1, 1995:
(a) If the individual is sentenced for that offense after October 1, 1995 or assigned to youthful traineestatus after October 1, 1995, the probation agent shall register the individual before sentencing or assignment.
(b) If the individual's probation or parole is transferred to this state after October 1, 1995, the probation orparole agent shall register the individual immediately after the transfer.
(c) If the individual is placed within the jurisdiction of the juvenile division of the probate court or familydivision of circuit court or committed to the department of social services or family independence agencyunder an order of disposition entered after October 1, 1995, the juvenile division of the probate court orfamily division of circuit court shall register the individual before the order of disposition is entered.
(4) For an individual convicted on or before September 1, 1999 of an offense that was added on September1, 1999 to the definition of listed offense, the following shall register the individual:
(a) If the individual is on probation or parole on September 1, 1999 for the listed offense, the individual'sprobation or parole agent not later than September 12, 1999.
(b) If the individual is committed to jail on September 1, 1999 for the listed offense, the sheriff or his orher designee not later than September 12, 1999.
(c) If the individual is under the jurisdiction of the department of corrections on September 1, 1999 for thelisted offense, the department of corrections not later than November 30, 1999.
(d) If the individual is within the jurisdiction of the family division of circuit court or committed to thefamily independence agency or county juvenile agency on September 1, 1999 under an order of dispositionfor the listed offense, the family division of circuit court, the family independence agency, or the countyjuvenile agency not later than November 30, 1999.
(e) If the individual is sentenced or assigned to youthful trainee status for that offense after September 1,1999, the probation agent shall register the individual before sentencing or assignment.
(f) If the individual's probation or parole for the listed offense is transferred to this state after September 1,1999, the probation or parole agent shall register the individual within 14 days after the transfer.
(g) If the individual is placed within the jurisdiction of the family division of circuit court or committed tothe family independence agency for the listed offense after September 1, 1999, the family division of circuitcourt shall register the individual before the order of disposition is entered.
(5) Subject to section 3, an individual convicted of a listed offense in this state after October 1, 1995 andan individual who was previously convicted of a listed offense for which he or she was not required to registerunder this act, but who is convicted of any other felony on or after July 1, 2011, shall register beforesentencing, entry of the order of disposition, or assignment to youthful trainee status for that listed offense orthat other felony. The probation agent or the family division of circuit court shall give the individual theregistration form after the individual is convicted, explain the duty to register and accept the completedregistration for processing under section 6. The court shall not impose sentence, enter the order of disposition,or assign the individual to youthful trainee status, until it determines that the individual's registration wasforwarded to the department as required under section 6.
(6) All of the following shall register with the local law enforcement agency, sheriff's department, or thedepartment immediately after becoming domiciled or temporarily residing, working, or being a student in thisstate:
(a) Subject to section 3(1), an individual convicted in another state or country on or after October 1, 1995of a listed offense as defined before September 1, 1999.
(b) Subject to section 3(2), an individual convicted in another state or country of an offense added onSeptember 1, 1999 to the definition of listed offenses.
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October 1, 1995 and, subject to section 3(2), an individual convicted in another state or country of an offenseadded on September 1, 1999 to the definition of listed offenses, who is convicted of any other felony on orafter July 1, 2011.
(d) An individual required to be registered as a sex offender in another state or country regardless of whenthe conviction was entered.
(7) If a prosecution or juvenile proceeding is pending on July 1, 2011, whether the defendant in a criminalcase or the minor in a juvenile proceeding is required to register under this act shall be determined on thebasis of the law in effect on July 1, 2011.
History: 1994, Act 295, Eff. Oct. 1, 1995;Am. 1999, Act 85, Eff. Sept. 1, 1999;Am. 2004, Act 237, Eff. Oct. 16, 2004;Am.2004, Act 240, Eff. Oct. 1, 2004;Am. 2011, Act 17, Eff. July 1, 2011.
28.724a Status report to registering authority; requirements; reports; written documentation;exception.Sec. 4a. (1) An individual required to be registered under this act who is not a resident of this state shall
report his or her status in person to the registering authority having jurisdiction over a campus of an institutionof higher education if either of the following occurs:
(a) The individual is or enrolls as a student with that institution of higher education or the individualdiscontinues that enrollment.
(b) As part of his or her course of studies at an institution of higher education in this state, the individual ispresent at any other location in this state, another state, a territory or possession of the United States, or theindividual discontinues his or her studies at that location.
(2) An individual required to be registered under this act who is a resident of this state shall report his orher status in person to the registering authority having jurisdiction where his or her new residence or domicileis located if any of the events described under subsection (1) occur.
(3) The report required under subsections (1) and (2) shall be made as follows:(a) For an individual registered under this act before October 1, 2002 who is required to make his or her
first report under subsections (1) and (2), not later than January 15, 2003.(b) Immediately after he or she enrolls or discontinues his or her enrollment as a student on that campus
including study in this state or another state, a territory or possession of the United States, or another country.(4) The additional registration reports required under this section shall be made in the time periods
described in section 5a(2)(a) to (c) for reports under that section.(5) The local law enforcement agency, sheriff's department, or department post to which an individual
reports under this section shall require the individual to pay the registration fee required under section 5a orsection 7(1) and to present written documentation of employment status, contractual relationship, volunteerstatus, or student status. Written documentation under this subsection may include, but need not be limited to,any of the following:
(a) A W-2 form, pay stub, or written statement by an employer.(b) A contract.(c) A student identification card or student transcript.(6) This section does not apply to an individual whose enrollment and participation at an institution of
higher education is solely through the mail or the internet from a remote location.History: Add. 2002, Act 542, Eff. Oct. 1, 2002;Am. 2004, Act 237, Eff. Oct. 16, 2004;Am. 2011, Act 17, Eff. July 1, 2011.
28.725 Conditions requiring individual to report in person and provide notice to registeringauthority; release of incarcerated individual; notice; compliance.Sec. 5. (1) An individual required to be registered under this act who is a resident of this state shall report
in person and notify the registering authority having jurisdiction where his or her residence or domicile islocated immediately after any of the following occur:
(a) The individual changes or vacates his or her residence or domicile.(b) The individual changes his or her place of employment, or employment is discontinued.(c) The individual enrolls as a student with an institution of higher education, or enrollment is
discontinued.(d) The individual changes his or her name.(e) The individual intends to temporarily reside at any place other than his or her residence for more than 7
days.(f) The individual establishes any electronic mail or instant message address, or any other designations
used in internet communications or postings.(g) The individual purchases or begins to regularly operate any vehicle, and when ownership or operation
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of the vehicle is discontinued.(h) Any change required to be reported under section 4a.(2) An individual required to be registered under this act who is not a resident of this state but has his or
her place of employment in this state shall report in person and notify the registering authority havingjurisdiction where his or her place of employment is located or the department post of the individual's place ofemployment immediately after the individual changes his or her place of employment or employment isdiscontinued.
(3) If an individual who is incarcerated in a state correctional facility and is required to be registered underthis act is granted parole or is due to be released upon completion of his or her maximum sentence, thedepartment of corrections, before releasing the individual, shall provide notice of the location of theindividual's proposed place of residence or domicile to the department of state police.
(4) If an individual who is incarcerated in a county jail and is required to be registered under this act is dueto be released from custody, the sheriff's department, before releasing the individual, shall provide notice ofthe location of the individual's proposed place of residence or domicile to the department of state police.
(5) Immediately after either of the following occurs, the department of corrections shall notify the locallaw enforcement agency or sheriff's department having jurisdiction over the area to which the individual istransferred or the department post of the transferred residence or domicile of an individual required to beregistered under this act:
(a) The individual is transferred to a community residential program.(b) The individual is transferred into a level 1 correctional facility of any kind, including a correctional
camp or work camp.(6) An individual required to be registered under this act who is a resident of this state shall report in
person and notify the registering authority having jurisdiction where his or her residence or domicile islocated immediately before he or she changes his or her domicile or residence to another state. The individualshall indicate the new state and, if known, the new address. The department shall update the registration andcompilation databases and promptly notify the appropriate law enforcement agency and any applicable sex orchild offender registration authority in the new state.
(7) An individual required to be registered under this act who is a resident of this state shall report inperson and notify the registering authority having jurisdiction where his or her residence or domicile islocated not later than 21 days before he or she changes his or her domicile or residence to another country ortravels to another country for more than 7 days. The individual shall state the new country of residence orcountry of travel and the address of his or her new domicile or residence or place of stay, if known. Thedepartment shall update the registration and compilation databases and promptly notify the appropriate lawenforcement agency and any applicable sex or child offender registration authority.
(8) If the probation or parole of an individual required to be registered under this act is transferred toanother state or an individual required to be registered under this act is transferred from a state correctionalfacility to any correctional facility or probation or parole in another state, the department of corrections shallpromptly notify the department and the appropriate law enforcement agency and any applicable sex or childoffender registration authority in the new state. The department shall update the registration and compilationdatabases.
(9) An individual registered under this act shall comply with the verification procedures and proof ofresidence procedures prescribed in sections 4a and 5a.
(10) Except as otherwise provided in this section and section 8c, a tier I offender shall comply with thissection for 15 years.
(11) Except as otherwise provided in this section and section 8c, a tier II offender shall comply with thissection for 25 years.
(12) Except as otherwise provided in this section and section 8c, a tier III offender shall comply with thissection for life.
(13) The registration periods under this section exclude any period of incarceration for committing a crimeand any period of civil commitment.
(14) For an individual who was previously convicted of a listed offense for which he or she was notrequired to register under this act but who is convicted of any felony on or after July 1, 2011, any period oftime that he or she was not incarcerated for that listed offense or that other felony and was not civillycommitted counts toward satisfying the registration period for that listed offense as described in this section.If those periods equal or exceed the registration period described in this section, the individual has satisfiedhis or her registration period for the listed offense and is not required to register under this act. If thoseperiods are less than the registration period described in this section for that listed offense, the individual shallcomply with this section for the period of time remaining.Rendered Wednesday, October 26, 2016 Page 8 Michigan Compiled Laws Complete Through PA 313 of 2016
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History: 1994, Act 295, Eff. Oct. 1, 1995;Am. 1999, Act 85, Eff. Sept. 1, 1999;Am. 2002, Act 542, Eff. Oct. 1, 2002;Am.2004, Act 240, Eff. Oct. 1, 2004;Am. 2005, Act 123, Eff. Jan. 1, 2006;Am. 2005, Act 132, Eff. Jan. 1, 2006;Am. 2006, Act 402,Eff. Dec. 1, 2006;Am. 2011, Act 17, Eff. July 1, 2011.
28.725a Notice to registered individual; explanation of duties; reporting requirements.Sec. 5a. (1) The department shall mail a notice to each individual registered under this act who is not in a
state correctional facility explaining the individual's duties under this act as amended.(2) Upon the release of an individual registered under this act who is in a state correctional facility, the
department of corrections shall provide written notice to that individual explaining his or her duties under thissection and this act as amended and the procedure for registration, notification, and verification and paymentof the registration fee prescribed under subsection (6) or section 7(1). The individual shall sign and date thenotice. The department of corrections shall maintain a copy of the signed and dated notice in the individual'sfile. The department of corrections shall forward the original notice to the department immediately, regardlessof whether the individual signs it.
(3) Subject to subsection (4), an individual required to be registered under this act who is not incarceratedshall report in person to the registering authority where he or she is domiciled or resides for verification ofdomicile or residence as follows:
(a) If the individual is a tier I offender, the individual shall report once each year during the individual'smonth of birth.
(b) If the individual is a tier II offender, the individual shall report twice each year according to thefollowing schedule:Birth Month Reporting MonthsJanuary January and JulyFebruary February and AugustMarch March and SeptemberApril April and OctoberMay May and NovemberJune June and DecemberJuly January and JulyAugust February and AugustSeptember March and SeptemberOctober April and OctoberNovember May and NovemberDecember June and December
(c) If the individual is a tier III offender, the individual shall report 4 times each year according to thefollowing schedule:Birth Month Reporting MonthsJanuary January, April, July, and OctoberFebruary February, May, August, and NovemberMarch March, June, September, and DecemberApril April, July, October, and JanuaryMay May, August, November, and FebruaryJune June, September, December, and MarchJuly July, October, January, and AprilAugust August, November, February, and MaySeptember September, December, March, and JuneOctober October, January, April, and JulyNovember November, February, May, and AugustDecember December, March, June, and September
(4) A report under subsection (3) shall be made no earlier than the first day or later than the last day of themonth in which the individual is required to report. However, if the registration period for that individualexpires during the month in which he or she is required to report under this section, the individual shall reportduring that month on or before the date his or her registration period expires. When an individual reportsunder subsection (3), the individual shall review all registration information for accuracy.
(5) When an individual reports under subsection (3), an officer or authorized employee of the registeringauthority shall verify the individual's residence or domicile and any information required to be reported undersection 4a. The officer or authorized employee shall also determine whether the individual's photographrequired under this act matches the appearance of the individual sufficiently to properly identify him or herfrom that photograph. If not, the officer or authorized employee shall require the individual to immediately
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obtain a current photograph under this section. When all of the verification information has been provided, theofficer or authorized employee shall review that information with the individual and make any corrections,additions, or deletions the officer or authorized employee determines are necessary based on the review. Theofficer or authorized employee shall sign and date a verification receipt. The officer or authorized employeeshall give a copy of the signed receipt showing the date of verification to the individual. The officer orauthorized employee shall forward verification information to the department in the manner the departmentprescribes. The department shall revise the law enforcement database and public internet website maintainedunder section 8 as necessary and shall indicate verification in the public internet website maintained undersection 8(2).
(6) Except as otherwise provided in section 5b, an individual who reports as prescribed under subsection(3) shall pay a $50.00 registration fee as follows:
(a) Upon initial registration.(b) Annually following the year of initial registration. The payment of the registration fee under this
subdivision shall be made at the time the individual reports in the first reporting month for that individual asset forth in subsection (3) of each year in which the fee applies, unless an individual elects to prepay anannual registration fee for any future year for which an annual registration fee is required. Prepaying anyannual registration fee shall not change or alter the requirement of an individual to report as set forth insubsection (3). The payment of the registration fee under this subdivision is not required to be made for anyregistration year that has expired before January 1, 2014 or to be made by any individual initially required toregister under this act after January 1, 2019. The registration fee required to be paid under this subdivisionshall not be prorated on grounds that the individual will complete his or her registration period after the monthin which the fee is due.
(c) The sum of the amounts required to be paid under subdivisions (a) and (b) shall not exceed $550.00.(7) An individual required to be registered under this act shall maintain either a valid operator's or
chauffeur's license issued under the Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923, or anofficial state personal identification card issued under 1972 PA 222, MCL 28.291 to 28.300, with theindividual's current address. The license or card may be used as proof of domicile or residence under thissection. In addition, the officer or authorized employee may require the individual to produce anotherdocument bearing his or her name and address, including, but not limited to, voter registration or a utility orother bill. The department may specify other satisfactory proof of domicile or residence.
(8) An individual registered under this act who is incarcerated shall report to the secretary of state underthis subsection immediately after he or she is released to have his or her digitalized photograph taken. Theindividual is not required to report under this subsection if he or she had a digitized photograph taken for anoperator's or chauffeur's license or official state personal identification card before January 1, 2000, or within2 years before he or she is released unless his or her appearance has changed from the date of that photograph.Unless the person is a nonresident, the photograph shall be used on the individual's operator's or chauffeur'slicense or official state personal identification card. The individual shall have a new photograph taken whenhe or she renews the license or identification card as provided by law, or as otherwise provided in this act.The secretary of state shall make the digitized photograph available to the department for a registration underthis act.
(9) If an individual does not report under this section or under section 4a, the department shall notify allregistering authorities as provided in section 8a and initiate enforcement action as set forth in that section.
(10) The department shall prescribe the form for the notices and verification procedures required under thissection.
History: Add. 1999, Act 85, Eff. Sept. 1, 1999;Am. 2002, Act 542, Eff. Oct. 1, 2002;Am. 2004, Act 237, Eff. Oct. 16, 2004;Am. 2004, Act 240, Eff. Oct. 1, 2004;Am. 2005, Act 322, Eff. Jan. 1, 2006;Am. 2011, Act 17, Imd. Eff. Apr. 12, 2011;Am. 2013,Act 149, Eff. Apr. 1, 2014.
28.725b Sex offenders registration fund; creation; disposition of money; use; lapse; claim ofindigence; waiver of fee; payments.Sec. 5b. (1) Of the money collected by a court, local law enforcement agency, sheriff's department, or
department post from each registration fee prescribed under this act, $30.00 shall be forwarded to thedepartment, which shall deposit the money in the sex offenders registration fund created under subsection (2),and $20.00 shall be retained by the court, local law enforcement agency, sheriff's department, or departmentpost.
(2) The sex offenders registration fund is created as a separate fund in the department of treasury. The statetreasurer shall credit the money received from the payment of the registration fee prescribed under this act tothe sex offenders registration fund. Money credited to the fund shall only be used by the department forRendered Wednesday, October 26, 2016 Page 10 Michigan Compiled Laws Complete Through PA 313 of 2016
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training concerning, and the maintenance and automation of, the law enforcement database, public internetwebsite, information required under section 8, or notification and offender registration duties under section4a. Money in the sex offenders registration fund at the close of the fiscal year shall remain in the fund andshall not lapse to the general fund.
(3) If an individual required to pay a registration fee under this act is indigent, the registration fee shall bewaived for a period of 90 days. The burden is on the individual claiming indigence to prove the fact ofindigence to the satisfaction of the local law enforcement agency, sheriff's department, or department postwhere the individual is reporting.
(4) Payment of the registration fee prescribed under this act shall be made in the form and by meansprescribed by the department. Upon payment of the registration fee prescribed under this act, the officer oremployee shall forward verification of the payment to the department in the manner the departmentprescribes. The department shall revise the law enforcement database and public internet website maintainedunder section 8 as necessary and shall indicate verification of payment in the law enforcement database undersection 8(1).
History: Add. 2004, Act 237, Eff. Oct. 16, 2004;Am. 2011, Act 17, Eff. July 1, 2011.
28.725c Fee collected by department of corrections; prohibition.Sec. 5c. The department of corrections shall not collect any fee prescribed under this act.History: Add. 2004, Act 237, Eff. Oct. 16, 2004.
28.726 Providing or forwarding copy of registration or notification.Sec. 6. (1) The officer, court, or agency registering an individual or receiving or accepting a registration
under section 4 or receiving notice under section 5(1) shall provide the individual with a copy of theregistration or notification at the time of registration or notice.
(2) The officer, court, or agency registering an individual or receiving or accepting a registration undersection 4 or notified of an address change under section 5(1) shall forward the registration or notification tothe department in a manner prescribed by the department immediately after registration or notification.
History: 1994, Act 295, Eff. Oct. 1, 1995;Am. 1996, Act 494, Eff. Apr. 1, 1997;Am. 2011, Act 18, Eff. July 1, 2011.
28.727 Registration information; format; fee; requirements; forwarding registration, notice,and verification information to federal bureau of investigation, local agencies, and otherregistering jurisdictions.Sec. 7. (1) Registration information obtained under this act shall be forwarded to the department in the
format the department prescribes. Except as provided in section 5b(3), a $50.00 registration fee shallaccompany each original registration. All of the following information shall be obtained or otherwiseprovided for registration purposes:
(a) The individual's legal name and any aliases, nicknames, ethnic or tribal names, or other names bywhich the individual is or has been known. An individual who is in a witness protection and relocationprogram is only required to use the name and identifying information reflecting his or her new identity in aregistration under this act. The registration and compilation databases shall not contain any informationidentifying the individual's prior identity or locale.
(b) The individual's social security number and any social security numbers or alleged social securitynumbers previously used by the individual.
(c) The individual's date of birth and any alleged dates of birth previously used by the individual.(d) The address where the individual resides or will reside. If the individual does not have a residential
address, information under this subsection shall identify the location or area used or to be used by theindividual in lieu of a residence or, if the individual is homeless, the village, city, or township where theperson spends or will spend the majority of his or her time.
(e) The name and address of any place of temporary lodging used or to be used by the individual duringany period in which the individual is away, or is expected to be away, from his or her residence for more than7 days. Information under this subdivision shall include the dates the lodging is used or to be used.
(f) The name and address of each of the individual's employers. For purposes of this subdivision,"employer" includes a contractor and any individual who has agreed to hire or contract with the individual forhis or her services. Information under this subsection shall include the address or location of employment ifdifferent from the address of the employer. If the individual lacks a fixed employment location, theinformation obtained under this subdivision shall include the general areas where the individual works and thenormal travel routes taken by the individual in the course of his or her employment.
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the individual as a student that he or she plans to attend. For purposes of this subdivision, "school" means apublic or private postsecondary school or school of higher education, including a trade school.
(h) All telephone numbers registered to the individual or routinely used by the individual.(i) All electronic mail addresses and instant message addresses assigned to the individual or routinely used
by the individual and all login names or other identifiers used by the individual when using any electronicmail address or instant messaging system.
(j) The license plate number, registration number, and description of any motor vehicle, aircraft, or vesselowned or regularly operated by the individual and the location at which the motor vehicle, aircraft, or vesselis habitually stored or kept.
(k) The individual's driver license number or state personal identification card number.(l) A digital copy of the individual's passport and other immigration documents.(m) The individual's occupational and professional licensing information, including any license that
authorizes the individual to engage in any occupation, profession, trade, or business.(n) A brief summary of the individual's convictions for listed offenses regardless of when the conviction
occurred, including where the offense occurred and the original charge if the conviction was for a lesseroffense.
(o) A complete physical description of the individual.(p) The photograph required under section 5a.(q) The individual's fingerprints if not already on file with the department and the individual's palm prints.
An individual required to be registered under this act shall have his or her fingerprints or palm prints or bothtaken not later than September 12, 2011 if his or her fingerprints or palm prints are not already on file with thedepartment. The department shall forward a copy of the individual's fingerprints and palm prints to the federalbureau of investigation if not already on file with that bureau.
(r) Information that is required to be reported under section 4a.(2) A registration shall contain all of the following:(a) An electronic copy of the offender's Michigan driver license or Michigan personal identification card,
including the photograph required under this act.(b) The text of the provision of law that defines the criminal offense for which the sex offender is
registered.(c) Any outstanding arrest warrant information.(d) The individual's tier classification.(e) An identifier that indicates whether a DNA sample has been collected and any resulting DNA profile
has been entered into the federal combined DNA index system (CODIS).(f) The individual's complete criminal history record, including the dates of all arrests and convictions.(g) The individual's Michigan department of corrections number and status of parole, probation, or
supervised release.(h) The individual's federal bureau of investigation number.(3) The form used for notification of duties under this act shall contain a written statement that explains the
duty of the individual being registered to provide notice of changes in his or her registration information, theprocedures for providing that notice, and the verification procedures under section 5a.
(4) The individual shall sign a registration and notice. However, the registration and notice shall beforwarded to the department regardless of whether the individual signs it or pays the registration fee requiredunder subsection (1).
(5) The officer, court, or an employee of the agency registering the individual or receiving or accepting aregistration under section 4 shall sign the registration form.
(6) An individual shall not knowingly provide false or misleading information concerning a registration,notice, or verification.
(7) The department shall prescribe the form for a notification required under section 5 and the format forforwarding the notification to the department.
(8) The department shall promptly provide registration, notice, and verification information to the federalbureau of investigation and to local law enforcement agencies, sheriff's departments, department posts, andother registering jurisdictions, as provided by law.
History: 1994, Act 295, Eff. Oct. 1, 1995;Am. 1996, Act 494, Eff. Apr. 1, 1997;Am. 1999, Act 85, Eff. Sept. 1, 1999;Am.2002, Act 542, Eff. Oct. 1, 2002;Am. 2004, Act 237, Eff. Oct. 16, 2004;Am. 2011, Act 18, Eff. July 1, 2011.
28.728 Law enforcement database; information to be contained for each registeredindividual; public internet website; compilation; availability; removal; note.Sec. 8. (1) The department shall maintain a computerized law enforcement database of registrations and
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notices required under this act. The law enforcement database shall contain all of the following informationfor each individual registered under this act:
(a) The individual's legal name and any aliases, nicknames, ethnic or tribal names, or other names bywhich the individual is or has been known.
(b) The individual's social security number and any social security numbers or alleged social securitynumbers previously used by the individual.
(c) The individual's date of birth and any alleged dates of birth previously used by the individual.(d) The address where the individual resides or will reside. If the individual does not have a residential
address, information under this subsection shall identify the location or area used or to be used by theindividual in lieu of a residence or, if the individual is homeless, the village, city, or township where theindividual spends or will spend the majority of his or her time.
(e) The name and address of any place of temporary lodging used or to be used by the individual duringany period in which the individual is away, or is expected to be away, from his or her residence for more than7 days. Information under this subdivision shall include the dates the lodging is used or to be used.
(f) The name and address of each of the individual's employers. For purposes of this subdivision,"employer" includes a contractor and any individual who has agreed to hire or contract with the individual forhis or her services. Information under this subsection shall include the address or location of employment ifdifferent from the address of the employer.
(g) The name and address of any school being attended by the individual and any school that has acceptedthe individual as a student that he or she plans to attend. For purposes of this subdivision, "school" means apublic or private postsecondary school or school of higher education, including a trade school.
(h) All telephone numbers registered to the individual or routinely used by the individual.(i) All electronic mail addresses and instant message addresses assigned to the individual or routinely used
by the individual and all login names or other identifiers used by the individual when using any electronicmail address or instant messaging system.
(j) The license plate number or registration number and description of any motor vehicle, aircraft, or vesselowned or regularly operated by the individual and the location at which the motor vehicle, aircraft, or vesselis habitually stored or kept.
(k) The individual's driver license number or state personal identification card number.(l) A digital copy of the individual's passport and other immigration documents.(m) The individual's occupational and professional licensing information, including any license that
authorizes the individual to engage in any occupation, profession, trade, or business.(n) A brief summary of the individual's convictions for listed offenses regardless of when the conviction
occurred, including where the offense occurred and the original charge if the conviction was for a lesseroffense.
(o) A complete physical description of the individual.(p) The photograph required under section 5a.(q) The individual's fingerprints and palm prints.(r) An electronic copy of the offender's Michigan driver license or Michigan personal identification card,
including the photograph required under this act.(s) The text of the provision of law that defines the criminal offense for which the sex offender is
registered.(t) Any outstanding arrest warrant information.(u) The individual's tier classification and registration status.(v) An identifier that indicates whether a DNA sample has been collected and any resulting DNA profile
has been entered into the federal combined DNA index system (CODIS).(w) The individual's complete criminal history record, including the dates of all arrests and convictions.(x) The individual's Michigan department of corrections number and the status of his or her parole,
probation, or release.(y) The individual's federal bureau of investigation number.(2) The department shall maintain a public internet website separate from the law enforcement database
described in subsection (1) to implement section 10(2) and (3). Except as provided in subsection (4), thepublic internet website shall contain all of the following information for each individual registered under thisact:
(a) The individual's legal name and any aliases, nicknames, ethnic or tribal names, or other names bywhich the individual is or has been known.
(b) The individual's date of birth.(c) The address where the individual resides. If the individual does not have a residential address,
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information under this subsection shall identify the village, city, or township used by the individual in lieu ofa residence.
(d) The address of each of the individual's employers. For purposes of this subdivision, "employer"includes a contractor and any individual who has agreed to hire or contract with the individual for his or herservices. Information under this subsection shall include the address or location of employment if differentfrom the address of the employer.
(e) The address of any school being attended by the individual and any school that has accepted theindividual as a student that he or she plans to attend. For purposes of this subdivision, "school" means a publicor private postsecondary school or school of higher education, including a trade school.
(f) The license plate number or registration number and description of any motor vehicle, aircraft, or vesselowned or regularly operated by the individual.
(g) A brief summary of the individual's convictions for listed offenses regardless of when the convictionoccurred.
(h) A complete physical description of the individual.(i) The photograph required under this act. If no photograph is available, the department shall use an arrest
photograph or Michigan department of corrections photograph until a photograph as prescribed in section 5abecomes available.
(j) The text of the provision of law that defines the criminal offense for which the sex offender isregistered.
(k) The individual's registration status.(l) The individual's tier classification.(3) The following information shall not be made available on the public internet website described in
subsection (2):(a) The identity of any victim of the offense.(b) The individual's social security number.(c) Any arrests not resulting in a conviction.(d) Any travel or immigration document numbers.(e) Any electronic mail addresses and instant message addresses assigned to the individual or routinely
used by the individual and any login names or other identifiers used by the individual when using anyelectronic mail address or instant messaging system.
(f) The individual's driver license number or state personal identification card number.(4) The public internet website described in subsection (2) shall not include the following individuals:(a) An individual registered solely because he or she had 1 or more dispositions for a listed offense entered
under section 18 of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.18, in a case that wasnot designated as a case in which the individual was to be tried in the same manner as an adult under section2d of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.2d.
(b) An individual registered solely because he or she was the subject of an order of disposition or otheradjudication in a juvenile matter in another state or country.
(c) An individual registered solely because he or she was convicted of a single tier I offense, other than anindividual who was convicted of a violation of any of the following:
(i) Section 145c(4) of the Michigan penal code, 1931 PA 328, MCL 750.145c.(ii) A violation of section 335a(2)(b) of the Michigan penal code, 1931 PA 328, MCL 750.335a, if a victim
is a minor.(iii) Section 349b of the Michigan penal code, 1931 PA 328, MCL 750.349b, if the victim is a minor.(iv) Section 539j of the Michigan penal code, 1931 PA 328, MCL 750.539j, if a victim is a minor.(v) An offense substantially similar to an offense described in subparagraphs (i) to (v) under a law of the
United States that is specifically enumerated in 42 USC 16911, under a law of any state or any country, orunder tribal or military law.
(5) The compilation of individuals shall be indexed alphabetically by village, city, township, and county,numerically by zip code area, and geographically as determined appropriate by the department.
(6) The department shall update the public internet website with new registrations, deletions fromregistrations, and address changes at the same time those changes are made to the law enforcement databasedescribed in subsection (1). The department shall make the law enforcement database available to eachdepartment post, local law enforcement agency, and sheriff's department by the law enforcement informationnetwork. Upon request by a department post, local law enforcement agency, or sheriff's department, thedepartment shall provide to that post, agency, or sheriff's department the information from the lawenforcement database in printed form for the designated areas located in whole or in part within the post's,agency's, or sheriff's department's jurisdiction. The department shall provide the ability to conduct aRendered Wednesday, October 26, 2016 Page 14 Michigan Compiled Laws Complete Through PA 313 of 2016
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computerized search of the law enforcement database and the public internet website based upon the nameand campus location of an institution of higher education.
(7) The department shall make the law enforcement database available to a department post, local lawenforcement agency, or sheriff's department by electronic, computerized, or other similar means accessible tothe post, agency, or sheriff's department. The department shall make the public internet website available tothe public by electronic, computerized, or other similar means accessible to the public. The electronic,computerized, or other similar means shall provide for a search by name, village, city, township, and countydesignation, zip code, and geographical area.
(8) If a court determines that the public availability under section 10 of any information concerningindividuals registered under this act violates the constitution of the United States or this state, the departmentshall revise the public internet website described in subsection (2) so that it does not contain that information.
(9) If the department determines that an individual has completed his or her registration period, including aregistration period reduced by law under 2011 PA 18, or that he or she otherwise is no longer required toregister under this act, the department shall remove the individual's registration information from both the lawenforcement database and the public internet website within 7 days after making that determination.
(10) If the individual provides the department with documentation showing that he or she is required toregister under this act for a violation that has been set aside under 1965 PA 213, MCL 780.621 to 780.624, orthat has been otherwise expunged, the department shall note on the public internet website that the violationhas been set aside or expunged.
History: 1994, Act 295, Eff. Oct. 1, 1995;Am. 1996, Act 494, Eff. Apr. 1, 1997;Am. 1999, Act 85, Eff. Sept. 1, 1999;Am.2002, Act 542, Eff. Oct. 1, 2002;Am. 2004, Act 238, Eff. May 1, 2005;Am. 2004, Act 240, Eff. Oct. 1, 2004;Am. 2011, Act 18,Eff. July 1, 2011;Am. 2013, Act 2, Eff. June 1, 2013.
28.728a Failure to register or update registration information; duties registering authority;duties of department.Sec. 8a. (1) If an individual fails to register or to update his or her registration information as required
under this act, the local law enforcement agency, sheriff's office, or department post responsible forregistering the individual or for verifying and updating his or her registration information shall do all of thefollowing immediately after the date the individual was required to register or to update his or her registrationinformation:
(a) Determine whether the individual has absconded or is otherwise unlocatable.(b) If the registering authority was notified by a registration jurisdiction that the individual was to appear in
order to register or update his or her registration information in the jurisdiction of the registering authority,notify the department in a manner prescribed by the department that the individual failed to appear asrequired.
(c) Revise the information in the registry to reflect that the individual has absconded or is otherwiseunlocatable.
(d) Seek a warrant for the individual's arrest if the legal requirements for obtaining a warrant are satisfied.(e) Enter the individual into the national crime information center wanted person file if the requirements
for entering information into that file are met.(2) If an individual fails to register or to update his or her registration information as required under this
act, the department shall do all of the following immediately after being notified by the registering authoritythat the individual failed to appear as required:
(a) Notify that other registration jurisdiction that the individual failed to appear as required.(b) Notify the United States marshal's service in the manner required by the United States marshal's service
of the individual's failure to appear as required.(c) Update the national sex offender registry to reflect the individual's status as an absconder or as
unlocatable.History: Add. 2011, Act 18, Eff. July 1, 2011.Compiler's note: Former MCL 28.728a, which pertained to feasibility studies for providing search by alias and mapping to show
address was repealed by Act 240 of 2004, Eff. Oct. 1, 2004.
28.728b Repealed. 2004, Act 240, Eff. Oct. 1, 2004.Compiler's note: The repealed section pertained to compilation of individuals not requiring registration.
28.728c Petition to discontinue registration; jurisdiction; limitations; oath; contents; falsestatement; filing copy with office of prosecuting attorney; notice; hearing; rights of victim;factors in court determination; granting of petition.
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Sec. 8c. (1) An individual classified as a tier I offender who meets the requirements of subsection (12) maypetition the court under that subsection for an order allowing him or her to discontinue registration under thisact.
(2) An individual classified as a tier III offender who meets the requirements of subsection (13) maypetition the court under that subsection for an order allowing him or her to discontinue registration under thisact.
(3) An individual classified as a tier I, tier II, or tier III offender who meets the requirements of subsection(14) or (15) may petition the court under that subsection for an order allowing him or her to discontinueregistration under this act.
(4) This section is the sole means by which an individual may obtain judicial review of his or herregistration requirements under this act. This subsection does not prohibit an appeal of the conviction orsentence as otherwise provided by law or court rule. A petition filed under this section shall be filed in thecourt in which the individual was convicted of committing the listed offense. However, if the convictionoccurred in another state or country and the individual is a resident of this state, the individual may file apetition in the circuit court in the county of his or her residence for an order allowing him or her todiscontinue registration under this act only. A petition shall not be filed under this section if a previouspetition was filed under this section and was denied by the court after a hearing.
(5) A petition filed under this section shall be made under oath and shall contain all of the following:(a) The name and address of the petitioner.(b) A statement identifying the offense for which discontinuation from registration is being requested.(c) A statement of whether the individual was previously convicted of a listed offense for which
registration is required under this act.(6) An individual who knowingly makes a false statement in a petition filed under this section is guilty of
perjury as proscribed under section 423 of the Michigan penal code, 1931 PA 328, MCL 750.423.(7) A copy of the petition shall be filed with the office of the prosecuting attorney that prosecuted the case
against the individual or, for a conviction that occurred in another state or country, the prosecuting attorneyfor the county of his or her residence, at least 30 days before a hearing is held on the petition. The prosecutingattorney may appear and participate in all proceedings regarding the petition and may seek appellate review ofany decision on the petition.
(8) If the name of the victim of the offense is known by the prosecuting attorney, the prosecuting attorneyshall provide the victim with written notice that a petition has been filed and shall provide the victim with acopy of the petition. The notice shall be sent by first-class mail to the victim's last known address. Thepetition shall include a statement of the victim's rights under subsection (10).
(9) If an individual properly files a petition with the court under this section, the court shall conduct ahearing on the petition as provided in this section.
(10) The victim has the right to attend all proceedings under this section and to make a written or oralstatement to the court before any decision regarding the petition is made. A victim shall not be required toappear at any proceeding under this section against his or her will.
(11) The court shall consider all of the following in determining whether to allow the individual todiscontinue registration under subsection (12) or (13) but shall not grant the petition if the court determinesthat the individual is a continuing threat to the public:
(a) The individual's age and level of maturity at the time of the offense.(b) The victim's age and level of maturity at the time of the offense.(c) The nature of the offense.(d) The severity of the offense.(e) The individual's prior juvenile or criminal history.(f) The individual's likelihood to commit further listed offenses.(g) Any impact statement submitted by the victim under the William Van Regenmorter crime victim's
rights act, 1985 PA 87, MCL 780.751 to 780.834, or under this section.(h) Any other information considered relevant by the court.(12) The court may grant a petition properly filed by an individual under subsection (1) if all of the
following apply:(a) Ten or more years have elapsed since the date of his or her conviction for the listed offense or from his
or her release from any period of confinement for that offense, whichever occurred last.(b) The petitioner has not been convicted of any felony since the date described in subdivision (a).(c) The petitioner has not been convicted of any listed offense since the date described in subdivision (a).(d) The petitioner successfully completed his or her assigned periods of supervised release, probation, or
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(e) The petitioner successfully completed a sex offender treatment program certified by the United Statesattorney general under 42 USC 16915(b)(1), or another appropriate sex offender treatment program. The courtmay waive the requirements of this subdivision if successfully completing a sex offender treatment programwas not a condition of the petitioner's confinement, release, probation, or parole.
(13) The court may grant a petition properly filed by an individual under subsection (2) if all of thefollowing apply:
(a) The petitioner is required to register based on an order of disposition entered under section 18 ofchapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.18, that is open to the general publicunder section 28 of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.28.
(b) Twenty-five or more years have elapsed since the date of his or her adjudication for the listed offenseor from his or her release from any period of confinement for that offense, whichever occurred last.
(c) The petitioner has not been convicted of any felony since the date described in subdivision (b).(d) The petitioner has not been convicted of any listed offense since the date described in subdivision (b).(e) The petitioner successfully completed his or her assigned periods of supervised release, probation, or
parole without revocation at any time of that supervised release, probation, or parole.(f) The court determines that the petitioner successfully completed a sex offender treatment program
certified by the United States attorney general under 42 USC 16915(b)(1), or another appropriate sex offendertreatment program. The court may waive the requirements of this subdivision if successfully completing a sexoffender treatment program was not a condition of the petitioner's confinement, release, probation, or parole.
(14) The court shall grant a petition properly filed by an individual under subsection (3) if the courtdetermines that the conviction for the listed offense was the result of a consensual sexual act between thepetitioner and the victim and any of the following apply:
(a) All of the following:(i) The victim was 13 years of age or older but less than 16 years of age at the time of the offense.(ii) The petitioner is not more than 4 years older than the victim.(b) All of the following:(i) The individual was convicted of a violation of section 158, 338, 338a, or 338b of the Michigan penal
code, 1931 PA 328, MCL 750.158, 750.338, 750.338a, and 750.338b.(ii) The victim was 13 years of age or older but less than 16 years of age at the time of the violation.(iii) The individual is not more than 4 years older than the victim.(c) All of the following:(i) The individual was convicted of a violation of section 158, 338, 338a, 338b, or 520c(1)(i) of the
Michigan penal code, 1931 PA 328, MCL 750.158, 750.338, 750.338a, 750.338b, and 750.520c.(ii) The victim was 16 years of age or older at the time of the violation.(iii) The victim was not under the custodial authority of the individual at the time of the violation.(15) The court shall grant a petition properly filed by an individual under subsection (3) if either of the
following applies:(a) Both of the following:(i) The petitioner was adjudicated as a juvenile.(ii) The petitioner was less than 14 years of age at the time of the offense.(b) The individual was registered under this act before July 1, 2011 for an offense that required registration
but for which registration is not required on or after July 1, 2011.History: Add. 2004, Act 240, Eff. Oct. 1, 2004;Am. 2011, Act 18, Eff. July 1, 2011.
28.728d Providing copy of court order granting petition to department and individual.Sec. 8d. If the court grants a petition filed under section 8c, the court shall promptly provide a copy of that
order to the department and to the individual. The department shall promptly remove an individual'sregistration from the database maintained under section 8(1).
History: Add. 2004, Act 240, Eff. Oct. 1, 2004;Am. 2011, Act 18, Eff. July 1, 2011.
28.729 Registration required; violations; penalties.Sec. 9. (1) Except as provided in subsections (2), (3), and (4), an individual required to be registered under
this act who willfully violates this act is guilty of a felony punishable as follows:(a) If the individual has no prior convictions for a violation of this act, by imprisonment for not more than
4 years or a fine of not more than $2,000.00, or both.(b) If the individual has 1 prior conviction for a violation of this act, by imprisonment for not more than 7
years or a fine of not more than $5,000.00, or both.(c) If the individual has 2 or more prior convictions for violations of this act, by imprisonment for not more
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than 10 years or a fine of not more than $10,000.00, or both.(2) An individual who fails to comply with section 5a, other than payment of the fee required under section
5a(6), is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not morethan $2,000.00, or both.
(3) An individual who willfully fails to sign a registration and notice as provided in section 7(4) is guilty ofa misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $1,000.00,or both.
(4) An individual who willfully refuses or fails to pay the registration fee prescribed in section 5a(6) orsection 7(1) within 90 days of the date the individual reports under section 4a or 5a is guilty of a misdemeanorpunishable by imprisonment for not more than 90 days.
(5) The court shall revoke the probation of an individual placed on probation who willfully violates thisact.
(6) The court shall revoke the youthful trainee status of an individual assigned to youthful trainee statuswho willfully violates this act.
(7) The parole board shall rescind the parole of an individual released on parole who willfully violates thisact.
(8) An individual's failure to register as required by this act or a violation of section 5 may be prosecuted inthe judicial district of any of the following:
(a) The individual's last registered address or residence.(b) The individual's actual address or residence.(c) Where the individual was arrested for the violation.History: 1994, Act 295, Eff. Oct. 1, 1995;Am. 1999, Act 85, Eff. Sept. 1, 1999;Am. 2002, Act 542, Eff. Oct. 1, 2002;Am.
2004, Act 237, Eff. Oct. 16, 2004;Am. 2005, Act 132, Eff. Jan. 1, 2006;Am. 2011, Act 18, Eff. July 1, 2011.Compiler's note: For transfer of powers and duties of Michigan parole and commutation board to Michigan parole board within
department of corrections, and abolishment of Michigan parole and commutation board, see E.R.O. No. 2011-3, compiled at MCL791.305.
28.730 Confidentiality; exemption from disclosure; availability of information on publicinternet website; violation as misdemeanor; penalty; civil cause of action; applicability ofsubsections (4) and (5) to public internet website.Sec. 10. (1) Except as provided in this act, a registration or report is confidential and information from that
registration or report shall not be open to inspection except for law enforcement purposes. The registration orreport and all included materials and information are exempt from disclosure under section 13 of the freedomof information act, 1976 PA 442, MCL 15.243.
(2) A department post, local law enforcement agency, or sheriff's department shall make information fromthe public internet website described in section 8(2) for the designated areas located in whole or in part withinthe post's, agency's, or sheriff's department's jurisdiction available for public inspection during regularbusiness hours. A department post, local law enforcement agency, or sheriff's department is not required tomake a copy of the information for a member of the public.
(3) The department may make information from the public internet website described in section 8(2)available to the public through electronic, computerized, or other accessible means. The department shallprovide for notification by electronic or computerized means to any member of the public who has subscribedin a manner required by the department when an individual who is the subject of the public internet websitedescribed in section 8(2) initially registers under this act, or changes his or her registration under this act, to alocation that is in a designated area or geographic radius designated by the subscribing member of the public.
(4) Except as provided in this act, an individual other than the registrant who knows of a registration orreport under this act and who divulges, uses, or publishes nonpublic information concerning the registration orreport in violation of this act is guilty of a misdemeanor punishable by imprisonment for not more than 93days or a fine of not more than $1,000.00, or both.
(5) An individual whose registration or report is revealed in violation of this act has a civil cause of actionagainst the responsible party for treble damages.
(6) Subsections (4) and (5) do not apply to the public internet website described in section 8(2) orinformation from that public internet website that is provided or made available under section 8(2) or undersubsection (2) or (3).
History: 1994, Act 295, Eff. Oct. 1, 1995;Am. 1996, Act 494, Eff. Apr. 1, 1997;Am. 1999, Act 85, Eff. Sept. 1, 1999;Am.2002, Act 542, Eff. Oct. 1, 2002;Am. 2004, Act 240, Eff. Oct. 1, 2004;Am. 2006, Act 46, Eff. Jan. 1, 2007;Am. 2011, Act 18, Eff.July 1, 2011.
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28.731, 28.732 Repealed. 2011, Act 18, Eff. July 1, 2011Compiler's note: The repealed sections pertained to effective date and conditional effective date of act.
  IIISTUDENT SAFETY ZONES
28.733 Definitions.Sec. 33. As used in this article:(a) "Listed offense" means that term as defined in section 2 of the sex offenders registration act, 1994 PA
295, MCL 28.722.(b) "Loiter" means to remain for a period of time and under circumstances that a reasonable person would
determine is for the primary purpose of observing or contacting minors.(c) "Minor" means an individual less than 18 years of age.(d) "School" means a public, private, denominational, or parochial school offering developmental
kindergarten, kindergarten, or any grade from 1 through 12. School does not include a home school.(e) "School property" means a building, facility, structure, or real property owned, leased, or otherwise
controlled by a school, other than a building, facility, structure, or real property that is no longer in use on apermanent or continuous basis, to which either of the following applies:
(i) It is used to impart educational instruction.(ii) It is for use by students not more than 19 years of age for sports or other recreational activities.(f) "Student safety zone" means the area that lies 1,000 feet or less from school property.History: Add. 2005, Act 121, Eff. Jan. 1, 2006;Add. 2005, Act 127, Eff. Jan. 1, 2006.Compiler's note: MCL 28.733 was added by 2005 PA 121 and 2005 PA 127. 2005 PA 127, being substantively the same as the 2005
PA 121, supersedes and becomes the only version on its effective date.
28.734 Prohibited conduct; violation; penalty; exceptions; other violations; right to vote.Sec. 34. (1) Except as provided in this section and section 36, an individual required to be registered under
article II shall not do 1 or more of the following:(a) Work within a student safety zone.(b) Loiter within a student safety zone.(2) An individual who violates this section is guilty of a crime as follows:(a) For the first violation, the individual is guilty of a misdemeanor punishable by imprisonment for not
more than 1 year or a fine of not more than $1,000.00, or both.(b) An individual who violates this section and has 1 or more prior convictions under this section is guilty
of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, orboth.
(3) Subsection (1)(a) does not apply to any of the following:(a) An individual who was working within a student safety zone on January 1, 2006. However, this
exception does not apply to an individual who initiates or maintains contact with a minor within that studentsafety zone.
(b) An individual whose place of employment is within a student safety zone solely because a school isrelocated or is initially established 1,000 feet or less from the individual's place of employment. However, thisexception does not apply to an individual who initiates or maintains contact with a minor within that studentsafety zone.
(c) An individual who only intermittently or sporadically enters a student safety zone for the purpose ofwork. However, this exception does not apply to an individual who initiates or maintains contact with a minorwithin a student safety zone.
(4) This section does not prohibit an individual from being charged with, convicted of, or punished for anyother violation of law that is committed by that individual while violating this section.
(5) Nothing in this section shall be construed to prohibit an individual from exercising his or her right tovote.
History: Add. 2005, Act 127, Eff. Jan. 1, 2006;Am. 2005, Act 322, Eff. Jan. 1, 2006.
28.735 Registered individual residing in student safety zone; prohibited conduct; violation;penalties; exceptions.Sec. 35. (1) Except as otherwise provided in this section and section 36, an individual required to be
registered under article II shall not reside within a student safety zone.(2) An individual who violates subsection (1) is guilty of a crime as follows:
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(a) For the first violation, the individual is guilty of a misdemeanor punishable by imprisonment for notmore than 1 year or a fine of not more than $1,000.00, or both.
(b) An individual who violates this section and has 1 or more prior convictions under this section is guiltyof a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, orboth.
(3) This section does not apply to any of the following:(a) An individual who is not more than 19 years of age and attends secondary school or postsecondary
school, and resides with his or her parent or guardian. However, this exception does not apply to an individualwho initiates or maintains contact with a minor within that student safety zone. However, the individual mayinitiate or maintain contact with a minor with whom he or she attends secondary school or postsecondaryschool in conjunction with that school attendance.
(b) An individual who is not more than 26 years of age and attends a special education program, andresides with his or her parent or guardian or resides in a group home or assisted living facility. However, anindividual described in this subdivision shall not initiate or maintain contact with a minor within that studentsafety zone. The individual shall be permitted to initiate or maintain contact with a minor with whom he orshe attends a special education program in conjunction with that attendance.
(c) An individual who was residing within that student safety zone on January 1, 2006. However, thisexception does not apply to an individual who initiates or maintains contact with a minor within that studentsafety zone.
(d) An individual who is a patient in a hospital or hospice that is located within a student safety zone.However, this exception does not apply to an individual who initiates or maintains contact with a minorwithin that student safety zone.
(e) An individual who resides within a student safety zone because the individual is an inmate or residentof a prison, jail, juvenile facility, or other correctional facility or is a patient of a mental health facility underan order of commitment. However, this exception does not apply to an individual who initiates or maintainscontact with a minor within that student safety zone.
(4) An individual who resides within a student safety zone and who is subsequently required to registerunder article II shall change his or her residence to a location outside the student safety zone not more than 90days after he or she is sentenced for the conviction that gives rise to the obligation to register under article II.However, this exception does not apply to an individual who initiates or maintains contact with a minorwithin that student safety zone during the 90-day period described in this subsection.
(5) This section does not prohibit an individual from being charged with, convicted of, or punished for anyother violation of law that is committed by that individual while violating this section.
History: Add. 2005, Act 121, Eff. Jan. 1, 2006;Am. 2005, Act 322, Eff. Jan. 1, 2006.
28.736 Exemptions.Sec. 36. (1) Subject to subsection (2), sections 34 and 35 do not apply to any of the following:(a) An individual who is convicted as a juvenile under section 520b, 520c, or 520d of the Michigan penal
code, 1931 PA 328, MCL 750.520b, 750.520c, and 750.520d, of committing, attempting to commit, orconspiring to commit a violation solely described in section 520b(1)(a), 520c(1)(a), or 520d(1)(a) of theMichigan penal code, 1931 PA 328, MCL 750.520b, 750.520c, and 750.520d, if either of the followingapplies:
(i) The individual was under 13 years of age when he or she committed the offense and is not more than 5years older than the victim.
(ii) The individual was 13 years of age or older but less than 17 years of age when he or she committed theoffense and is not more than 3 years older than the victim.
(b) An individual who was charged under section 520b, 520c, or 520d of the Michigan penal code, 1931PA 328, MCL 750.520b, 750.520c, and 750.520d, with committing, attempting to commit, or conspiring tocommit a violation solely described in section 520b(1)(a), 520c(1)(a), or 520d(1)(a) of the Michigan penalcode, 1931 PA 328, MCL 750.520b, 750.520c, and 750.520d, and is convicted as a juvenile of violating,attempting to violate, or conspiring to violate section 520e or 520g of the Michigan penal code, 1931 PA 328,MCL 750.520e and 750.520g, if either of the following applies:
(i) The individual was under 13 years of age when he or she committed the offense and is not more than 5years older than the victim.
(ii) The individual was 13 years of age or older but less than 17 years of age when he or she committed theoffense and is not more than 3 years older than the victim.
(c) An individual who has successfully completed his or her probationary period under sections 11 to 15 ofchapter II for committing a listed offense and has been discharged from youthful trainee status.Rendered Wednesday, October 26, 2016 Page 20 Michigan Compiled Laws Complete Through PA 313 of 2016
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(d) An individual convicted of committing or attempting to commit a violation solely described in section520e(1)(a) of the Michigan penal code, 1931 PA 328, MCL 750.520e, who at the time of the violation was 17years of age or older but less than 21 years of age and who is not more than 5 years older than the victim.
(2) An individual who is convicted of more than 1 offense described in subsection (1) is ineligible forexemption under this section.
History: Add. 2005, Act 121, Eff. Jan. 1, 2006.
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Exhibit B: Partial List of Post-Does I
Challenges to SORA
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Michigan State Court Cases
Case Docket No. Court Clark JOHNSON v. Menominee County Pros
17-15685-CZ Menominee Circuit
Barton Lee BROWN v. Monroe County Pros
17-139607-CZ Monroe Circuit
Dustin CARLETON v. Oakland County Pros
2016-15 5829-CZ Oakland Circuit
Burton NELSON v. Jackson County Pros 17-290-NZ Jackson Circuit
Sean Arthur CHARNLEY v. Col. Kriste Etue
17-000053-MZ Court of Claims
Michael Clayton CORBETT v. MSP Director
17-000087-MZ Court of Claims
Michael Todd DAVIS v. Director of MSP 17-000108-MZ Court of Claims
Steven Dean YOUNG v. Kurt Asbury, Pros
17-003203-CZ Bay Circuit
Thomas HERRALA, Sr. v. O'Leary 17-6705 CZ Baraga Circuit
Christopher NIERMAN v. MSP Director 17-000100-MZ Court of Claims
Jason CRAWFORD v. Col. Kriste Etue 17-000123-MZ Court of Claims
Richard K. COEUR, Sr. v. James Rossiter.
17-9081-CZ Antrim Circuit
George GILBERT v. Col. Kriste Etue 17-000151-MZ Court of Claims
Steven BELL v. Col. Kriste Etue 17-000157-MZ Court of Claims
Derek SANDS v. Col. Kriste Etue. 17-000180-MZ Court of Claims
Jesse Earl FORD v. Col. Kriste Etue. 17-000146-MZ Court of Claims
Daniel EDENBURN v. Col. Kriste Etue 17-000177-MZ Court of Claims
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James SCHOLTZ v. Col. Kriste Etue 17-000219-MZ Court of Claims
George John BOLENBAUGH, Ill v. Col. Kriste Etue
17-0362-CZ Kalamazoo Circuit
Michael SUNDBERG v. State Police Director
17-000278-MZ Court of Claims
William Michael FITTRO v. Col. Kriste Etue
17-000284-MZ Court of Claims
William Sim SPENCER v. Benzie County Pros
16-10475-CZ Benzie Circuit
Christopher TRAYLOR v. MSP 16-1552-97-CZ Oakland Circuit
Bruce Allen BAXTER v. MSP 16-2893-CZ Jackson Circuit
Timothy GEAN v. Shiawassee County Pros
16-9098-CZ Jackson Circuit
Jeffrey Burton CONKLIN v. Macomb County Pros
16-3819-CZ Shiawassee
Ronald Paul ALEXANDER v. Oakland County Pros
2016-155746-CZ Oakland Circuit
Darrell Leroy BENEDICT v. Ingham County Pros
16-844-CZ Ingham Circuit
Martin DEFOUW v. State of Michigan 16-844-CZ Kent Circuit
Ronald Kevin HILLIER v. Mark Jernigan 16-723317-CZ Roscommon Circuit
Anthony HART v. State of Michigan 16-000212-MM Court of Claims
Timothy MCLELLAND v. MSP 16-10524-CZ Benzie Circuit
William Michael BURNHAM v. Tuscola County Pros
unknown Tuscola Circuit
Martan Sherard AGNEW v. Macomb County Pros
16-3985-CZ Macomb Circuit
David Dewayne HENRY v. Alpena County Pros
16-7518-CZ Alpena Circuit
Randy LOSEE v. Cass County Pros 16-831-CZ Cass Circuit
Richard Leo KRAMP, II v. MSP Director 16-003040-CZ St. Clair Circuit
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Michigan Federal District Court Cases
Case Docket No. Court Hall v. Washington No. 16-cv-11812 E.D. Mich.
Roe v. Snyder No. 16-cv-13353 E.D. Mich.
Spencer v. Snyder No. 1:16-cv-1465 W.D. Mich.
Dentry v. Michigan No. 17-cv-10643 E.D. Mich.
Price v. Edwards No. 17-cv-10601 E.D. Mich.
Taylor v. Snyder No. 1:16-cv-14445 E.D. Mich.
Alexander v. Cooper No. 2:16-cv-14231 E.D. Mich.
Doe v. Snyder No. 1:17-cv-00638 W.D. Mich.
Compaan v. Snyder No. 1:15-cv-01140 W.D. Mich.
Elrod v. Snyder No. 2:17-cv-0483 E.D. Mich.
Lewis v. Snyder
No. 1:17-cv-10808 E.D. Mich.
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EXHIBIT C: October 10, 2017 Lindstrom Letter
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STATE OF MICHIGAN DEPARTMENT OF ATTORNEY GENERAL
P.O. BOX 30212 LANSING, MICHIGAN 48909
BILL SCHUETTE ATTORNEY GENERAL
October 10, 2017
Larry Royster, Clerk of the Court Michigan Supreme Court Michigan Hall of Justice 925 W. Ottawa Street Lansing, MI 48915
Re: Supplemental authority in People v Temelkoski, No. 150643
Dear Mr. Royster:
Last week, the United States Supreme Court denied Michigan’s petition for certiorari in Snyder v Does #1–5, No. 16-768. As a result, the Sixth Circuit’s decision in Does #1–5 v Snyder, 834 F3d 696 (2016), is final and entitled to precedential weight. Thus, while this Court is not bound by the decision of an intermediate federal appellate court, the State, after further consideration and out of concern for actions brought under 42 USC § 1983, waives the argument that it may retroactively apply the 2006 and 2011 amendments to Michigan’s Sex Offender Registry Act.
I would appreciate it if you would circulate this letter, filed under MCR 7.212(F), to the Justices in advance of tomorrow’s oral argument in People v Temelkoski.
Sincerely, /s/ Aaron D. Lindstrom Solicitor General 517-241-8403
ADL:hlg cc: Julie A. Powell David Herskovic Miriam Aukerman Brenda Bove Robyn Frankel Elvira Hernandez Jackie Julien Paul Reingold Lesley Rice Monica Smith Kimberly Thomas
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