review to apply those burdens retroactively over the last two decades there have been two major developments first of all states have imposed restriction after restriction on  that we now see what scholars call super registration statutes that look nothing like the first generation registration statutes that were an issue in the supreme court's decision and smith the second major development is that the research has come in and that research has it viscerally did the assumptions on which those laws are based low risk offenders post less risk of committing a sex offense than the baseline for out of the blue offenses and recidivism rates of even high risk offenders drop dramatically over time registration and exclusion zones the research shows don't protect the public and in fact often counter productive thing the ex post facto clause is designed to protect unpopular groups from for indictive legislation and so it is not simply a rational basis test it is a multi factor test and one of the significant factors the most significant factor really is the excessiveness factor that one that one of the pack with it but there are several other thing you're not you're not arguing that safety the record here shows that that is not the case and the ex post facto the record shows that that is not the case that it's not the purpose or not the effect it is not the effect it is a lifetime registration does not have the effect that the legislature has a valid for this for the statute and under the ex post facto cause you have a small to factor test so it doesn't look at you know just what to the legislature intend but it looks at  what you know how severe are the burdens are those burdens excessive in relation to the legislative purpose is that is that rational as we've set out in our briefs in fact that purpose the the  research shows that that purpose is suing is the purpose has not been met but even even if even you've got this you have to look at the excessiveness factor and this is a statute that affects every aspect of people's lives it only i'd like to i'd like to talk a little bit about smith versus sora and give a quote comparison of those two statutes so in smith this is the case before the supreme court yes the alaska case that was before the supreme court that was a first generation registration statute not a super registration statute so in smith the supreme court said there is evidence here of substantial harm here we have a record that is replete with evidence of the harm that our plaintiffs have suffered as a consequence of being on the registry in smith the court says registration only has minor in in terms of yes or no it was it i believe it was six to three with the concurrence that that had that was quite concerned about it and that was a close decision on a statute that looks nothing like the statute we have today here you've got a lot more people can go here and there have to stay in this place i mean it but i would guess liberty is much more affected in this case than is absolutely so and smith the court said people are free in the free to live where they want that is not true here in smith the court said well it's sort parole but there's not in person reporting so we're not going to say it's true to a traditional form of punishment here we have in person reporting in smith there was no immediate reporting requirement we have to show up within three days here you've got immediate reporting for all sorts of different things like created a new email address in smith the court says there's no evidence that simply having a conviction wouldn't have the same result here the record unequivocally shows that individuals would get jobs  despite having a conviction and then they would get fired because when an employer found out that they were on the registry the record shows that for example don't number for could not live with his wife and children because of source so these are harms that are attributable to soar so that's not like smith the statue and smith did not have limitations on free speech here we have limitations to the internet reporting requirement in smith the court so there's no assertion of dangerousness what we have here is that the state labels individuals as tier three registrants it creates categories or registrants it says your category one your to your one your to two your two three labels the degree of anger it labels the degree of dangerousness which was you know in smith the course that all we're doing is reporting on all the statutes doing is reporting on convictions that's not the case here the state is picking out a group of people and saying these are not only are these dangerous sex offenders these these are the most dangerous and our clients respectively are not dangerous but they are not certainly not the most dangerous they're not dangerous at all in smith there are no limitations on parenting as we discussed earlier here before there are severe restrictions individuals seeing here the basic and the only real reason for that so that test is a multi factor test that goes to the first factor the extent of their disability and restraints the other factors i think are also important here because if you look for example at the last two factors which are is that is this rational and is it excessive in relation to to the  purpose what we have which we didn't have in smith is first of all in mazing record in this case but also research that shows that the supreme court's assumptions about sex offenders are not true and i refer you to the omen article that's attached to  has to rely on shows that that is simply not true there are there are different levels of risk but even the high risk people drop off dramatically or times there's no reason for lifetime i just read that research  available at the time of the supreme court in the smith case there were i don't know if i don't know if all of that was available but as i one point out the research that supreme court was relying on was not actual research it  was simply sort of opinions that work that were out there and i think the ex post facto i mean certainly what we see the legislature do is rely on this this fear and assumptions about registry read just about people who commit sex offens and what we now have is the research that shows that that isn't true it shows that in fact registries can increase recidivism rates and that these the zones that are being created destabilize individuals are counter to public policy so you know as a matter of public policy these are bad but that's not before this court the question before this court is are these excessive in relation to this about non punitive purpose and it's those individuals who are dangerous and impose restrictions on them and require minoring but to base that purely on a prior conviction a conviction that may be decades old a conviction that in some of these cases not even for a s good afternoon may it please the court grill with michigan department of attorney general on behalf of the pallies i just want to take a begin by dressing one point from counsel's argument there was a reference to the immediate in person reporting and how that was an added burden to the to the registrants that was ruled unconstitutional at the lower court and that was not appealed by the state in this case so as a consequence it is not part of the statute that is really being applied or i structure first of course is that the intent is very clearly not punitive it's stated directly in the link to the statute that this is a civil regulation it is not intended to be that we would if that intent that we look at it had an impact on the effects of the second part of the progress so if we're looking at the effects of the case first of all what is the disability or restraint that the that the registers are being placed upon the only thing that the the statute or the amendments that drew this constitutional challenge were not to the statute as a whole or at least not the way i understand it it was brought about through amendments that did very limited things all it did was extend the right time for registration for some registrants broke them up into tears added the requirement to register email addresses and internet identifiers they are so many things that restrain a person's liberty they can go here can't go there in some cases can't live with the rest of their family at a particular location it's a massive change and deliberative people have to come and go and live their lives well i'm glad you brought that up your honor because again the things that talk about where they can live where they can work and that kind of thing are only limited to the student safety zone portion of the statute that is currently part of the other appeal that we argued two months ago and the argument there was that and at the lower court had ruled that there are vague and they're impossible to measure and so they can't be applied properly now should the court in that matter still up in the air but if the court decides in it that the lower court was correct that that's vague then there's really no need to reach the idea of whether or not those are constitute ex post facto punishment but if we know it's a question of chicken well i think i would suggest of the court that if i was going to pick the order it would go in mind you might my position is still that it's not big but if i'm going to pick the order i would say that start with vagueness because if it's a vagueness problem a lot of the burden t that the appellate described here goes to their problems of defining the zones we have to have this extra large zone because we don't know exactly how far away from school we need to be and so it excludes more places and more things that we can do so i would point to the court that right now there is already a bill in front of the michigan legislature and senate bill five eighty one which addresses almost point for point the exact things that the lower court told it to address the measurement of the zones the specific and specifically  not just for no apparent purpose now now we're talking about you have to have intentionally entered into school property and chosen to stay there if you work if you have a job that brings on a school property you can do that only now you wouldn't be able to in a gauge with minor or interact with them or continue to do so if they interacted with you if you're a parent you could go to the school in go see their plays watch their games talk to the teacher do those things but you could just wander in there for no reason so the bill before the state house right now goes a long way toward addressing a lot of the ambiguity in the problems that are addressed in the vagueness and which underscore the burden that they describe as far as why that is so punitive i would i guess for lack of a better word so in that respect i would say that you used the word that if it is true answers the question on a post facto and again my met my position is not punitive but at that i was trying to describe it by reference to the things that they're describing of what makes a punitive weld it's these the zones that we can travel to well that's a specific part of the statute that if the court determines is vague then we don't need to address it for us but ex post facto we have a better version of the statue potentially on its way that would again is the media in person reporting which is out of the law at this point so it's not really something that is a burden to anyone as it concerns the internet registration again there's no restriction on what they can view where they can go how they can interact who they can talk to of the sex offender registration act it does nothing to restrict anyone's ability to access interact with or do anything on the internet the only thing they have to do is if they open up an account if they start a new e mail address if they open up a new identity on line with which with with which the interact with people they have to report it and we don't know that's the immunity in person reporting requirement that was going to at some point in time they did and then you know and that's what they'd reported the same as they would report everything else their cars their telephone their home but it's just reporting there's not an idea that says well we're out you also have to give us a list of everything you've said all you're telling us is the identity in that percents that's a useful tool for law enforcement with the idea that when they're investing in an investigating a crime they've got a child that has disappeared they've got their chat history they know they're talking to this chat entity and then they can search that chad entity and see if that is a registered offender on the internet that this person is a danger to the community no your honor and that's something i take great issue with and it's been a long stretch of controversy between council myself all the tears are they say tear tear one tear to two or three there's not an expression here of tears three extra bad danger watch out it says two or three so without some further judgment or determination by the individual looking at the registration page there's nothing there to say tier three is the worst of the worst bad person all it says is tier three and that is  basically for organisations structure to say that the tear ones they go away after a certain number of years the tear threes have lifetime registration requirements and that's that's really the extent of the influenced here hasn't anyone it doesn't set them up for extra special registration duties there's no if you are a tier three you have to report this extra additional information it's just about how long it's or you're one that's different from tier three i'm sorry what does it say on tier one that is different from tier three from the standpoint of an offender's page where this for you you have nothing it says tier one and it says tier three and there's no reference to danger or anything on any of the two offense and so you can say well these are the offense that gets you the tears three lifetime registration and certainly of danger is not anywhere communicated you're saying not only offenders website it's not that this is an extra dangerous person this is just two or three again any other place was or is it communicated the any other place that a person is dangerous dangerous to the community i think the it would what you would have to do is say that the person is going to go to the sorra read the statute look at the list of offenses and turman that those are the most dangerous offenses and so that means tier three as you mean there's nothing publicly available that says what is a tier one offender what is it dear to offender statu there's at this point i it's been a while since i've let me out let me put it a little differently which would inquire require anybody looking at this to make an inference but is that publish somewhere what the reporting requirements are for tear one as opposed to tear two as opposed to tier three because if it if if if if it's clear that two or three people have to report forever it even you know the most naive reader is going to figure out wait a  these are bad guys i know the statute obviously incorporates your honor and that's publicly available at this time i do not know whether or not the michigan sex offender registry website has as it frequently asked questions or as an informational point these are the tears and this is how they're broken up but again all it really would really identify is these are the offenses they're convicted of this is how long they have to register and that's not a matter of drawing a target on someone saying this is an extra bad person this is a statement of fact let me ask another question related to  it and that is that the way these tears are constructed they are they're based entirely on the actual conviction is that correct that's correct so there is no individualized determination as to any of these offenders correct and i think that would actually present more problems we get into a weird point there gazing into someone's soul and trying to decide this is a bad person this is a good person and that has defied law enforcement forever well it probably doesn't take a lot of soul gazing to look at somebody who committed an offense that had no sexual component to it whatsoever but for reasons known to the legislature  still puts him in a tear three situation this would be like john doe number one with the get in charge in the john doe number one presents it's the one of the it's a challenging case but i would respond in this way that kidnapping itself is obviously not far removed from a sex offense many times the offenses involving minors have a kidnapping component to it if you're going to molest a child generally there is a taking them away to some remote place first so it's not a complete stretch to say that's how kidnapping gets on the list john doe number one you know he did have a sexual component to his crime but he did have a kidnapping charge i can i can i can draw criticism about his lawyers ability why he allowed him to plead to that offense i could draw criticism to the prosecutor in the charging choice the fact remains what does that we're not making a determination that john doe number one is a is the type of person or he's a bad person  we can really say for sure is what john doe number one did he kidnapped and so that's what that's what got him on the registry but people in the position of john doe number one and i i would have to say i'm skeptical that there's only one john doe number one in the state of michigan so people in that position have no recourse they have no ability to ever get off of that registry is that right of the  whether or not that would negate the need to register my inclination would be that probably not but i would have to do is going to say based on the way the rest of it works i would say not right you know my guess but again looking at it from the standpoint of you know every of every offense there could always be someone to say well yeah i did this but there was this extenuating circumstance that for excuse that or forgive it for for david that's the that's the the part of the problem with you know trying to make an individualized determination is it becomes less a matter of objective fact it becomes more a matter of subjective opinion a large part of the type of analysis or individualize assessment that counsel suggest that we do is inherently subjective one person well he's a good he's a good kid from a good family and so we're going to let him go is another person looking at the same person saying well i don't know he's a really dangerous offender he did a bad thing and i see no remorse when we get into that type of individual as assessment we're opening the door to not an objective statement of fact or opening the door to a much more problematic type of analysis and i don't even know what type of standards we could apply to say this person is a sex offender this person is not other than what they've actually done and the in particular these particular jondo is unmarried those with the exception of john doe number one every one of them had sex with a minor and they can explain why one of them as a criminal offense correct here  i mean is clearly related to grumble offenses and it's doing something in response to criminal offenses the registration is yes yes and the other factors that are connected to it it's all al grove rise from a criminal offense correct and i see that i'm out of time thank you you most states are making the many stay cases that we cited you know this sort of new wave of cases finding ex post facto violations a couple things are important about those first of all many of those state courts first found you know ten years ago that their statutes were constitutional and then said looking at what has happened since and how onerous they've become they've crossed the line it's gone too far and most of those and cases that you're referring to these are primarily state cases they're primarily state cases where there has there was one case out of the ninth circuit that was vacated though as moot by the u s supreme court i think the supreme court is interested in this issue took it but then there was a minister issue me states supreme court cases believe we cite eight cases in our brief i think one of those may be an intermediate court i can't recall offhand but there's a there's there's this two wave of cases because and these are these are states that previously said the statute was fine and then have looked at the changes not even not even work and loitering and residency but looked at in person recording looked at lifetime registration looked at all of these other burdens and said that's gone too far i want to address your question about the relationship that is a facial challenge and the supreme court in the johnson case said that when there's official that challenge on a criminal law they criminal law that needs to be facially addressed there are going to be there are registrants today who are going to be faced with that same bigness problems right who are convicted today put on the registry today who would not be affected by the ex post facto woman but are going to face that same issue so i believe the court has to address that as well  you're making a distinction here if this court says that the michigan statute is convicted the statute could not be applied retroactively to those individuals it could still be applied prospect of lee because the state can post actively punish the state could say we're going to impose these restrictions as punishment on people in the future but what the state can't do under the ex post facto clauses go back and increase the punishment for a prior offense and so the vagueness issues remain for individuals who were convicted after two thousand and eleven or after a few thousand you know basically were connected into the future right so the big miss issue remains for those individuals because the state can't punish those individuals it would be be would from the time in the right the individuals who would benefit from an ex post facto ruling would be individuals who were put on the registry prior to the legislative changes that have made the statute so punitive right so individuals i would say probably come from two thousand and you know it depends and i think one of one of the what this court needs to decide is really that there needs to be individualized a few for those individuals going going backward you're asking us to do is to decide what in the future would be void for vagueness because if it is ex post facto all that takes the statute down it declares it to be now invalid but it doesn't say anything about what in the future ask it in a slightly different way or i could if we were to decide that that the ex post facto challenge here is meritorious that gets rid of all of these plaintiffs who have raised that that question and if if that is so who is before us as to whom we could decide if ignace challenge i think that's a very good question and i would point i would point the court to that u s supreme court's recent decision in johnson about how to how courts should address facial challenges because the challenges facial challenges to vague criminal laws because the court says when there's a facial challenge it should be addressed facially i think that would apply here not to all of the claims certainly if the court agrees or the plan is an ex post facto many of the claims would not need to be reached but i think the facial ones may need to be reached and that would be the biggest issues it would be that i'm worrying about is i mean i hear you i understand what you're saying but for every single one of the plaintiffs that we have in front of us if we say this law is runs afoul of the ex post facto clause then any other reason that we would say this law can't be applied whether it we're looking at it facially or as applied is really kind of dicta is it not because we're getting rid of it on the basis of ex post facto you act again i think that one of the i would ask the court to look at that particular case and see see what the johnson case that i mentioned we would certainly be very pleased with the ruling from this court finding that this is an ex post facto or in reality what or you can walk are you concerned about my concern is that the back here again but we would be dealing with it in a way that wasn't picked up because it would it would mean something with regard to however we rule i would say as a as a practical matter my understanding is the legislature  has been waiting for a decision from this court in terms of making some decisions about how to frame a constitutional statute source i believe would certainly be helpful to this court i think the court can and should address it but if certainly raises many issues and that would be a way to address what is really the core the core of this case sapan i see my time is up if the panel has other questions and happy to answer them i think we do not thank you donna