think in my career i cannot think of a case that has been more extensively briefed between the lower court in the appellate brief the appellate the appeal briefs in this case i mean really my difficulty this morning was trying to decide on what to focus and i think the best way to approach would simply just kind of direct to do that what i think are the main questions of the issues brit's answered in the appeal like the start of the first issue in strict scrutiny and i think the question here is simply can states create states are constitutionally barred from creating a strict liability offenses in fact although the plaintiff cite to the more sets and exciting video cases these cases concern whether or not congress intended to create by strict liability offenses not whether or not it was permissible for them to do so moreover those only addressed federal statutes and they were not applicable not applied to the states if more set were to be applied i think you'd also have to apply the part of the decision that notes that there is no general rule against criminal offenses without requiring criminal intent moreover in this particular statute there is expressed intent to create a strictly a strict liability offense as twenty eight seven twenty nine distinguishes between willful violations and merely failure to comply in the people the mcfall the michigan court of appeals has already reviewed and concluded that this was an expressed plain language determination that this is an intent to create a strict but that would be offense that you tend to distinguish among the provisions of the law as to what crimes created require strict liability or not well the the language of the statute says willful violation and makes that if it makes that willful violation a felony simple failure to comply is made a misdemeanor and so i think the the inclination there is well if you knew what your obligations were and you deliberately avoided them well that makes you know that's a felony violation the the the lesser strict liability issue comes in if well you know if there was a particularly marginal case i didn't know it was unintentional i think one of the examples it's been offered in the in the briefing that the plaintiffs of previously pointed to was the idea of well if you're in the hospital well first of all i would point to the idea that i doubt that there's any police officer prosecutor that's going to try to prosecute an offender who is one would want to have to rely on that though would one step so much matter of reliance your honor i would more point to the idea that i think that would be if that were to be arrested and were to be charged i think very unlikely and i think i would feel comfortable relying on the idea of you ladies and gentlemen of the jury would you convict someone on that basis but even putting that to the side were there to arise that would obviously be a failure to comply situation not a willful violation in  circumstance that would only be a misdemeanor so could i ask you as the michigan attorney general's office a policy in which it writes a letter has certain designated people who might ask for an interpretation of a particular statute many of the attorney general's office say attorney general's offices around the state policy or such a section of its office writes interpretive letters we do your honor the mission a part of attorney general has in fact opinions division then focuses expressly on that in this particular circumstance for one reason or another there hasn't been a whole lot of inquiry on this and i think part of that is reflective that there simply are not very many prosecutions for violations of the students who don't have any letters you vision there is one your honor there one is and i think that it's in the record in this case and it dealt with whether or not an offender dropping off their own child at a school did that contravene the student safety zone around the school and the opinion as i recall was that so long as you're dropping off your own child and you're not hanging around and you know observing other minors that's not a violation and certainly that same process is available for other marginal or unique circumstances available but at this point in time there just simply hasn't been many many different ways that a person might have to go close to a school i mean to pay your taxes or to you know a lot of huge number of reasons commercial reasons or the bus station or whatever but there's no  attorney general's office other than the one you mentioned about those guys and again simply it's because our office has not been asked but i think as far as going to a school or being near a school once and this would probably be something to you know i would press more in the idea of whether or not the definition of the student safety zones or the measurement of it is vague or a constitutional but it's important to note that the only issue with being near a school is if you're residing if you're working or if you're loitering in  the definition of loitering it only really concerns are you in a are you at near within the student safety zone for a period of time and under the circumstances that a reasonable person would conclude that your primary purpose is for observing or contacting respond i think there is a definite yes because it's not just a matter of well you're near a school and maybe the council maybe a dozen again we've got several triggers within that definition the first is for a period of time in under circumstances so already it's not just a matter of i was passing through a school and i you know i'm not loitering would get so to your own child's play you know and i think the reason for that is because that gets into the idea of the primary purpose being to observe minors there's no way to have watched only observing your contacting minors walking through school having a parent teacher conference and mary purposes to go watch your trial perform and apply you're still guilty it is because you're observing or contacting your primary purpose is to observe or contact minors there's no way to enough your your circumstances suggest that you're not just walking through minding your own business there is this is the whole purpose of this definition is to capture distinguish between just being within the zone going to going to the school to pick up your own child require more say that we put the child fifteen twenty minutes and i think this gets weird since the idea of the period of time in the circumstances that suggest that your primary purpose is not for your own business it's for observing and contacting minors now if you drop off your own child and then you just kind of hang around in the parking lot for hour to hour three hours or opinion counsel i mean some other prosecutor may have a different opinion well that's mean is this is this discretionary i do or the prosecutor and we we don't normally think that the rule of law allows just pure discretionary law i don't that's meant mainly what monarchs do i don't believe that is purely discretionary on i think there is enough definition within the structure of loitering to both provide advance notice and an understanding of what is being prescribed here this is designed not so much to get people passing through a school zone is trying to get the person that is standing outside the playground for a long period of time watching kids play and that's what we're trying to capture here it's not a matter of trying to play gotcha and surprise your violator we're trying to direct a specific conduct of the michigan courts themselves like until like the mission screen court ruled any of these questions i'm sorry as the michigan supreme court ruled on the meaning of any of these questions not yet your honor i believe there is currently a case pending in front of the means supreme court that they have asked for briefing on the definition in the interpretation of this language they have not yet ruled that has the argument is not occurred yet and how long has it been in the missions cream or not very long i just i only became aware of it earlier this month so i think that the briefing letter was sent out i think november it is and what issue or issues do they seem to have before your hon close simply by saying that i i believe first of all that strict scrutiny is i'm sorry strict liability is a is appropriate here and also that the definitions provided in the statute are on reasonably understood by a person of ordinary intelligence or not very reserved women or whatever well thank you the defendants here in their briefs and ask you to make decisions based on fear we're asking you to make your decision based on the facts and in particular on the extensive record in this case and what that record shows is that  comprehensible both to registrants and law enforcement and also shows that service tricks virtually every aspect of plaintiff's lives from where they can live to what jobs they can have to whether they can go to their kid's soccer match in the second round of briefing we've addressed whether that all encompassing regulation can be retroactively imposed the question for you today is whether the state whether plaintiffs should be strictly liable if they fail to comply with his web of restrictions that they cannot understand let me start with the vagueness there are three areas where the district court found fault the exclusion zones the loitering prohibition and certain reporting requirements with the exclusion zones we're dealing here with conduct that is entirely innocent working living parenting that's otherwise legal defined further the one thousand feet like like from the property line of whatever would that be a move to cure it in your mind so let me address all aspects of me that question first on the gotcha question the record actually here shows that there are gotcha situations for example in michigan the former legal affairs director of the michigan department corrections was an expert witness for us he testified that in his will he would see parolees who would  says you can do that the prosecutor then turn around and prosecute them that would result in returns to prison because a sort of violation is an automatic promote while ation so those are gotcha situations another situation one of our witnesses is a former regist he he was unclear the lot keeps changing he went into inquiries and now the recent law changes do i have to report once a year or more than once he was told once by the police got it in writing turns out he had to report more than once he was prosecuted so there are gotcha situations and that's beary clear from the record the question of measurement that us ask there are two ways in which the statute is unclear on measurement for the exclusion zones and the district addresses that precise issue that's mentioned in our brief about how you can have a definite distance that is nevertheless unclear because you don't know where to start on the bigger problem though and that can be cured by you know specifying in this document or from the property line which is how defendants would have us measure the bigger problem is that if you measure from the property line people don't know where personal boundaries are we're not you can't walk down the street and see this part you know federal courthouse maybe and maybe maybe you can the federal courthouse can sort of see where it is but if you're if you're in a town you don't know which is this does this parcel belong to the town or to the school this football field and where is that we're is the boundary here's a field not belong to this farmhouse or that farmhouse how do you know where the possibilities are absent marking this in the physical environment registrants we're going to know the sex offender unit in the mission state police sex offender unit could not or it does not happen parceled out itself to measure this and so what we see in practice i mean there's two recent cases have been filed this is the reason they're asking for this court to  modify it to not simply to or from the district court but to modify it to me and with instructions to modify the injunction to be facing facial there are two recent district court cases that have been found one in the east and one in the western district that exempl this problem where for example the one in the and the eastern district this individual had worked for two years in a job reported regularly that address the police two years later say you know what we've looked at this again we think but this is an exclusion zone before we thought it wasn't now we think it is you got to quit your job the one in the eastern district that's just been filed and that individual he was looking for home he went to the police station said this is the apartment i'd like to run he was told yeah this is fine you're not in exclusion zone he goes and he says sign comes back to register that address he's told actually we're looking at a different database now and it's not it and we think which is the case that i'm aware of that case actually has much more to do with an issue that's risen the second row in a briefing with joan number two and whether individuals who had who were  different which is the one that i'm aware of that's in the supreme court so would not address these types of issues around the interpretation and the thing that i want to make sure that is clear is that this affects every aspect of an individual's life so if for example take down number four he works he works in retail he get he knows that he's got to report his job but his and this happened during the course of this litigation that his employer says you know we're short staffed over in this store i'm going to send you there for the day what's he supposed to do does he have to report that it what if it's in an exclusion zone how does he know if it's in an exclusion zone how long does he have to work there if we were to strict liability versus bigness with respect to strict liability i think what the district court here did was absolutely right which was was was barry was very modest and was simply to say if you can you can we're not striking down a statute but i'm saying if you're going to enforce the statute you have to have to be men's right so with respect to the strict liability piece of it i think what the district court is exactly is exactly right and it just has to be asked to be global with respect to vagueness i think there really is a question of a facial injunction against the provisions that the district court correctly identified as which are the exclusion zones the loiter revisit that issue and address its concerns in an in another constitutional way but but that piece of it because they're big and i don't think there is really a way to cure that vagueness simply by saying we're going to measure from this particular i do think that is i think partly it's because of sort of the practicalities of the fact that these are very unpopular people it's very difficult for them to get representation typically you see more individuals are bringing challenges it's in the context of criminal appeals and there's not there's not there's not a lot of lawyers out there that are willing to stand up for clients who are on this unpopular it's also because  while registration is fairly you know all states have some kind of registry in there they vary a lot some of them are risk based and have individualized assessments some of them like michigan's or connection based exclusion zones michigan has covers and that it covers this the order in which is effectively a ban on parenting because you can't the state itself doesn't know whether you're you can look at your own child if you can look at your own child you can and you can know where the stones are and how you can walk around town we know that two thousand years i'm not sure what the current number is how many of those or you know or don't know are forcible rape type cases how many of them are many of are about forcible rape versus the other crimes i don't think we know because michigan doesn't organize it that way so we have basically one of the biggest problems in this really goes into the second round is that michigan's registry is conviction based rather than as a risk base and that the experts in it are very clear that there's a beary small number of people and there are people who are dangerous and those people should be monitored hand the number of people who are serial offenders this is contrary to the popular perception so we've got you know on the one hand people on you know i can count on one hand these individuals were says michigan has a fourth largest registry in the country with  i'm not sure that i would say that the majority are consensual sex i won't but i would say that we don't know because we don't look at that registry isn't organized in that way it's simply basically the way the state does is to say if you have this three is mr dunn number four and it's somebody who has a forcible rape right so we throw in people i don't know before who is married to the woman who was the victim and the person with the forcible rape what we do know in what is very clear from the record is that there are many many many people who are not dangerous who are on the registry we also know that recidivism risk drops off dramatically over time that's also very clear from the record and that lifetime registration simply makes no sense there's no purpose to research and in how other states work there's a there's a great variety in terms of some of them have you know individualized hearings some of them have sort of petitions for removal there's bridey of different ways at this work but but basically what we're asking for is an individualized review the opportunity to demonstrate the opportunity speedball shouldn't be on the registry unless the presently dangerous unless there's a rest because of the law but the enorm looking at the breadth of the statute that as it's currently configured it is broad enough to sweep people who are dangerous but there's no  registry am i reading that right or wrong that's absolutely correct so the statute includes people who never committed a sexual france they are labeled by the state as sex offenders stigmatized a s required to register based on this idea that they might sexually reset of eight when they didn't commit a sex offense in the first place you also have people like joe number two who were never convicted you have people like don't number five who committed a sex offen over thirty years ago who didn't commit any other fans and didn't come in the other sexual kind then ends up you know stealing some scrap metal that puts him on the registry so we have this wide range of people who are on some of whom are sex offenders some of whom are not some and connecticut the two two supreme court decisions they make it very clear that their decisions are limited to the specific statutes before them in the specific claims that they're brought and you see in in the saying we think there's a bunch of other challenges that are out there were kind of troubled by this idea that you've got consensual teen sex if you know people who are having consensual teen sex ending up on the registry for life and being you know i mean that was a that was a first generation statu e that was not in person reporting now was not life without that was not you know exclusion zones that was not all in this sort of sweeping array of things that people have to report that wasn't affecting parenting and even though the supreme court closely divided was very in the history of this problem and the present or pretty close to the present situation or not there's an x not more all of you article cited are briefed by catherine carpenter which is called something like the evolution of the it might be i can recall your honor i would also refer you to the expert report of james prescott who is a university michigan law professor an economist that's in our that's part of the exhibits in this case who talks about the way in which sex offender registries hammar evolve he he has done research he's compiled a compendium of just the major statutes affecting registration that's over a thousand pages it's you know they're different in every state they're different every town  only from my own personal experience in defending this statute i have encountered so many different attorneys raising issues at the circuit court level and at the state court level and here in the federal court level i would also suggest that the reference to the other cases also mention is kind of inappropriate in this case these newly filed and in fact one of the cases that was described has not actually been filed yet or at least it hasn't been served suffice to say those cases are not in the record here the allegations are just that are allegations we haven't even filed an answer to these claims yet so i think that would be i would be very cautious about trying to use those cases as leverage or demonstration of general problem here that the statute is open to so many different interpretations for example about zones about other aspects of it well that it's not really what you think of as  complying with the rule of law so discretionary with prosecutors that people don't know what it covers and what it does  respect your honor i would disagree i think the statute is i think very well definite i think that it is particularly if you're looking at the student safety zones as a thousand feet from the school and if the issue is well we don't have personal boundaries we cannot create these very complicated very detailed maps that's not necessary it simply is not if i want to if i want to go see if i'm a sex offender and i want to go someplace the simplest got one prosecutor who says yes this is a thousand feet and says no and you got a letter from the attorney general's office and hang taken your child to school and go and get to child from school was ok but others prosecutors saying no it's not him i mean it's ridiculous well your honor i don't think first that it and there's no agreement among even those who are tasked with having to for some apply that on a day to day basis actually the record demonstrates that there is one of the statements one of the testimony we have is from her tenor who was not only a former prosecutor but also works for the prosecuting attorneys association of michigan and his job is to train other prosecutors and he testified that it is generally accepted that the measurement zone is properly under proper line it's a thousand feet so if you want to go someplace where you want to go measure a thousand feet back and see if you find a school google maps will show you where schools are that's a different color parcel in the land same thing with other maps you know you can find school in the school zones very easily if you want to look at and use google maps when you use your car odometer as one of the doe's in this case actually did if you want to use simply a phone book on it in a paper by the car that you're using routinely you didn't mention to the no if you're if you're if you're violating the statute you probably don't want to do that but even they know how would you define teen lee in that part of the statute i think under the under the commonly used definitions of these terms it's something you use regularly often i've got the whole idea here was not that we're going to say it three times and it's mechanically or if you register all of your cars or all of your phones we're trying to address the relationship the individual has we're trying to address a pattern and practice this is i think an acceptable way of approaching it because it then levy it's the problem of over inclusive capturing phones you use once and never again and being under inclusive where i maybe can't capture in these three phones but i'll just keep getting burner phones every day you know use them twice and threw them away i have to work and you have to go by school in order to get to work so your workplace is a little bit out of the zone but you have to go to school every day back and forth that covered by the statute are not absent it's as looking at the statute and no it's not covered because you're not residing you're not working inside the zone and you're not loitering because you're not there in it just being in the zone is not a violation you have to be there for the period of time under circumstances that lead to the primary purpose of observing minors driving by a school does not constitute loitering under any stretch of the definition and i don't think that's even that's not even one of the argument the plastic to raise here and again as far as the strict liability i just want to emphasize one thing we don't see where does this suppose a bar for strict liability come from it certainly doesn't come from the united states supreme court has never said that states or even the federal government are barred from creating strict liability offenses in fact it's a quite the contrary furthermore the best case saying that a case like this is not covered i would say i would point to lambert and say is this like lambert we have a woman in the case and lambert addressed the idea of the guy walks into town without any prior notice and they slap the handcuffs on him because he failed to register that's not this case we have send out a written notice to every single offender saying these are your obligations these are your dual income from other states if you sent them a notice to i'm sorry well if we're free people come from other states i would suggest that first of all this is not michigan is not alone in registering sex offenders it is widely known it  widely understood that sex offenders have registration applications so if you're moving to a new state i think it behooves it but just these people who are engaged in consensual sex well known that that's illegal but if they're convicted in another state of a sex offense that's the other status or to determine that they have done something illegal so if you're if the idea is they're coming to michigan and they don't know it's illegal to have sexual relations with someone under the age of eighteen i think that you know there and then i think that's going to be begs the question we know that there are strict liability offenses statutory rape is a strict liability offense and in fact that's what that's the issue that several of those in this case found themselves in was they engaged most of them knowingly in sexual  ation ships with minors and so that's what got them in the registry in the first place that's permissible to to hold people criminally culpable even if they didn't mean to have to mean break the law but in this case they did they knew what they were doing they knew that they were underage that the that their partners were under eighteen and they did it anyway so i don't in as far as consent i don't think that there's there's a lot of ambiguity here because i think the only one of the those in this case don't number five was convicted of straight up a rape and his allegation now is well i've talked to her since and now she's going to affidavit saying oh it was i was pressured by my father and it wasn't really rape but he was convicted and now we're trying to go backwards in time and say well you know the factual circumstances of that case were not they really consented i have a real problem with that because there is a jury verdict saying he did commit sexual assault without consent and i think they're going to be underscores the whole problem with this idea of  dangerousness your honor you raised a question here about equal protection and we get into this idea of well are they really dangerous do we need these individual determinations of doing this we can't do that the step the rest of the research on the tools they want to use i think one of the ones that's in the record is the static ninety people without the sexual component and i referred specifically to the case of the robbery and kidnapping obviously dangerous but there was no sexual component in that particular case that i could see but there was a minor with kidnap as a part of that right now there's no question about that dangerousness there but it brings them people who are dangerous and people who are offender registry because frequently one goes with the other but the point i want to raise about equal protection is the idea that the tools they want to use the tools the urge to say well we can figure out who is a vital who's a dangerous person and who will reoffend in the future by using these tools doesn't work for juveniles it doesn't work for women it doesn't work for offenders who are not native to the north american culture so we have now established three different categories age gender nationality that they want to distinguish and we cannot do it for these people and will do it for these engine years an equal protection problem down the road i think that's a trap and i think that's something the court should be very cautious of of getting too deeply into i see them on time are there other questions f