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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

______________________________________________________________________________

JOHN DOES #1-4 and MARY DOE,
Plaintiffs, v.

File No. 2:11-cvHon.

RICHARD SNYDER, Governor of the State of Michigan, and COL. KRISTE ETUE, Director of the Michigan State Police, in their official capacities,

Mag. Judge

Defendants. ______________________________________________________________________________

COMPLAINT

PRELIMINARY STATEMENT

1. Plaintiffs John Does #1-4 and Mary Doe are Michigan residents who have been retro-

actively required to comply with Michigan’s Sex Offender Registration Act for the rest of their

lives. See M.C.L. § 28.721 et. seq., as amended July 1, 2011 (SORA 2011).

2. The plaintiffs were all charged or convicted before SORA 2011 came into effect.

3. Under SORA 2011, the plaintiffs have been and will be subjected to constant supervision;

required to report frequently in person; banned from living or working in many areas; restricted

as to when they can travel; limited in their rights to free speech; hindered from maintaining nor-

mal family relationships; identified publicly and falsely as dangerous; and subjected to a vast

array of state-imposed restrictions that encompass virtually every facet of their lives. See

Obligations, Disabilities, and Restraints Imposed by SORA 2011 (Exh. 1). The plaintiffs must

comply with these extensive restrictions and obligations for as long as they live, or face criminal

sanctions.

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4. The plaintiffs ask this Court to recognize what other courts across the country have increasingly found: that the nature of sex offender registration has fundamentally changed since 2003, when the U.S. Supreme Court upheld a registration scheme that imposed only “minor and indirect” restraints on registrants. See Smith v. Doe, 538 U.S. 84, 100 (2003).
5. Numerous courts have now recognized that the retroactive application of sex offender registration schemes and their associated restrictions violate the constitutional prohibition on ex post facto laws. See, e.g., U.S. v. Juvenile Male, 590 F.3d 924 (9th Cir. 2009), vacated as moot, 131 S.Ct. 2860 (2011); State v. Williams, 952 N.E.2d 1103 (Ohio 2011); Wallace v. State, 905 N.E.2d 371 (Ind. 2009); State v. Letalien, 985 A.2d 4 (Me. 2009); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999 (Alaska 2008).
6. SORA 2011 imposes such extensive and punitive restrictions on the plaintiffs that it violates the constitutional prohibition on ex post facto laws.
7. In addition, SORA 2011 violates the plaintiffs’ fundamental rights to travel, work, speak, and raise their children, without being narrowly tailored to meet a compelling state interest.
8. SORA 2011 also violates the Due Process Clause because it (a) requires John Doe #1 to register even though he was never convicted of a sex offense; (b) requires John Doe #2 to register on a public registry even though he was promised privacy in his plea agreement; and (c) extends the registration periods for John Does #3-4 and Mary Doe from 25 years to life.
9. Finally, many provisions of SORA 2011 are void for vagueness. The plaintiffs are strictly liable for complying with a sweeping and complex law, even though the language of the law does not provide clear notice of what is prohibited or required, either for those subject to it or for those who enforce it, making full compliance with the law impossible.
10. The plaintiffs seek declaratory and injunctive relief barring retroactive application of the
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law as applied to them, and limiting the application of SORA 2011 to individuals who are actually dangerous.
JURISDICTION 11. Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1343 because the plaintiffs seek redress for the deprivation of rights secured by the U.S. Constitution. The plaintiffs’ federal claims are brought under 42 U.S.C. § 1983. 12. The plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201-2202, by Fed. R. Civ. P. 57 and 65, and by the legal and equitable powers of this Court. 13. State claims may be heard by virtue of the Court’s supplemental jurisdiction pursuant to 28 U.S.C. § 1367. 14. Venue is proper in the Eastern District of Michigan pursuant to 28 U.S.C. § 1391(b).
THE PLAINTIFFS1 John Doe #1
15. Plaintiff John Doe #1 resides in the Eastern District of Michigan. 16. In 1990, when Mr. Doe #1 was 20 years old, he was fired from his job as a maintenance worker at McDonalds. He believed he was fired unjustly. Out of anger and revenge, he tried to rob his former employer. 17. During the attempted robbery, Mr. Doe #1 allegedly threatened to take the manager’s 12year-old son hostage. The manager and her son escaped, and Mr. Doe #1 was apprehended. 18. Mr. Doe #1 pled guilty to armed robbery and weapons charges. He also pled no contest to kidnapping (for the threat to the boy). 19. Mr. Doe #1 never engaged in any sexual misconduct during the attempted robbery, nor has any such conduct ever been alleged against him.
1 The plaintiffs’ declarations attesting to the facts alleged in the complaint are attached as Exhs. 2-6.
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20. Mr. Doe #1 was sentenced to 20 to 40 years in prison. 21. While incarcerated, Mr. Doe #1 became a model prisoner. He helped run Chance for Life, a program that trains prisoners how to handle conflict productively. He was involved in the Warden’s Forum, a program where older prisoners mentored younger ones. He held leadership positions in various prisoner organizations. He earned the support of his warden for parole. 22. In November 2009, Mr. Doe #1 was paroled. He successfully completed his parole in November 2011. 23. Mr. Doe #1 has led a productive life since his release. He has been employed for approximately two years as a vocational coach, working with special-needs adults. He is engaged to be married. 24. Mr. Doe #1 has not been charged with or convicted of any crime since his convictions stemming from the 1990 restaurant robbery. 25. Under SORA 2011, individuals convicted of kidnapping a minor are required to register as sex offenders for life, even though the offense lacks any sexual component. M.C.L. § 28.722(w)(ii). 26. At the time Mr. Doe #1 was convicted, Michigan did not have a sex offender registry. He therefore did not receive, and could not have received, any notice that his conviction for a nonsex offense would subject him to registration as a sex offender. 27. Had Mr. Doe #1 known that a kidnapping conviction would result in sex offender registration, he would have tried to bargain for an alternate disposition that would not have resulted in registration. 28. Under SORA 2011, Mr. Doe #1 is classified as a Tier III offender. He must register and comply with all SORA 2011 requirements for life, even though he has never been accused – let
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alone been convicted – of any sex offense. John Doe #2
29. Plaintiff John Doe #2 resides in the Eastern District of Michigan. 30. In the summer of 1996, when Mr. Doe #2 was 18 years old, he had a sexual relationship with a 14-year old girl. 31. John Doe #2 pled guilty to criminal sexual conduct III under the Holmes Youthful Trainee Act (HYTA). HYTA is a record-sealing statute that allows young offenders to have their cases dismissed and the records sealed. 32. Specifically, HYTA provides that if a youth between the ages of 17 and 21 pleads guilty, the court “without entering a judgment of conviction” may “assign that individual to the status of youthful trainee.” M.C.L. § 762.11(1). If the youth completes the trainee period – typically a period of probation – then “the court shall discharge the individual and dismiss the proceedings.” M.C.L. § 762.14(1). 33. An assignment to youthful trainee status “is not a conviction for a crime.” M.C.L. § 762.14(2). Moreover, “all proceedings regarding the disposition of the criminal charge and the individual's assignment as youthful trainee shall be closed to public inspection,” M.C.L. § 762. 14(4), meaning that court records in HYTA cases are sealed from the public and do not appear on the person’s criminal history. 34. Mr. Doe #2’s plea was based on the state’s promise that his case would be dismissed under HYTA and his records sealed. At no time before his plea was Mr. Doe #2 ever informed that he was required, or might in the future be required, to register as a sex offender. At no time before his plea was Mr. Doe #2 ever informed that information about his case could be posted on a public Internet-based sex offender registry (which at that time did not exist).
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35. Mr. Doe #2 received no jail time, but was sentenced to two years of probation. He was discharged from probation early (after 18 months) for good behavior. He also completed sex offender therapy. His case was dismissed and his records sealed.
36. When Mr. Doe #2 was discharged from probation, he went to collect his fingerprints pursuant to the HYTA provisions that sealed his records. He was informed that he was subject to registration as a sex offender, even though he had not been convicted of a sex offense. His registration period was 25 years, making him eligible for removal at age 44.
37. At the time of Mr. Doe #2’s offense, Michigan had just created it’s sex offender registry. Although the statutory scheme required registration of HYTA trainees, the registry was private. It was available only to law enforcement, and registry information was exempt from Freedom of Information Act requests. Thus, there was no conflict between HYTA’s promise that Mr. Doe #2’s records would be sealed, and the maintenance of a non-public law enforcement database.
38. There was also no requirement that registrants report at regular intervals. It was Mr. Doe #2’s understanding that nothing further was required of him after his initial registration.
39. Mr. Doe #2 went on to lead a productive life. He served in active duty military service twice, earning an honorable discharge both times, as well as awards for outstanding achievement. While in the service, he suffered a traumatic brain injury from a grenade. He now receives disability benefits through the Veterans Administration.
40. In late spring or summer 2011, law enforcement officials contacted Mr. Doe #2 and told him that he was subject to supervision and reporting as a sex offender. Mr. Doe #2 had not previously known that he had retroactively become subject to Michigan’s supervision and reporting requirements (in addition to the original one-time registration) because of the amendments to the state’s SORA.
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41. Despite the fact that Mr. Doe #2’s plea was based on an explicit promise by the state that his records would be kept private, and despite the fact that he was never convicted of a crime under Michigan law, he is now required to comply with SORA 2011.
42. Under SORA 2011, Mr. Doe #2 was retroactively re-classified as a Tier III offender, and he must now register for life.
43. Mr. Doe #2 was four years and one month older than the girl with whom he had sex. Had the age difference between them been less than four years, Mr. Doe #2 would not be subject to sex offender registration. M.C.L. § 28.722(w)(iv).
44. But for the fact that Mr. Doe #2 is publicly listed on the sex offender registry, schools, employers, landlords, and the public would be unaware of his sealed HYTA case or the facts underlying it. That was precisely the deal that was offered and accepted when he agreed to the HYTA disposition of his case.
45. Upon information and belief, Mr. Doe #2 has no criminal convictions. (He does have a military disciplinary action for marijuana use.)
John Doe #3 46. Plaintiff John Doe #3 resides in the Eastern District of Michigan. 47. In January 1998, when Mr. Doe #3 was 19 years old, he had a sexual relationship with a 14-year-old girl. Mr. Doe #3 had first met the girl at a hair salon where she had washed his hair, and he believed that she was an adult. 48. When the girl’s parents became aware of the relationship, they demanded that Mr. Doe #3 marry the girl, or the parents would go to the police. Mr. Doe #3’s family and the girl’s family met, but Mr. Doe #3 initially refused to marry her. 49. The girl’s family then pressed charges. Thereafter the families met again, and Mr. Doe
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#3 agreed to the marriage. Once this happened, the girl’s family tried to drop the charges. The girl admitted to the police, as is documented in the police reports, that at her father’s request she falsely accused Mr. Doe #3 of sexual assault. Mr. Doe #3 did not ultimately marry the girl.
50. Mr. Doe #3 admitted to the police that he had a sexual relationship with the girl. He pled guilty to attempted criminal sexual conduct III for having sex with a minor. He, too, was sentenced under the Holmes Youthful Trainee Act, with four years probation.
51. At the time of Mr. Doe #3’s offense, Michigan did not yet have a public, Internet-based registry. Mr. Doe #3 was required to register for 25 years, making him eligible for removal at age 45. The requirements for quarterly in-person reporting (during the first 15 days of January, April, July and October) were introduced after his plea was accepted, but they were nevertheless applied retroactively to him.
52. During his last year on probation, Mr. Doe #3 missed the 15-day registration window. Although he tried to report near the end of the 15-day period, the office was closed. He was therefore unable to report until after the 15 days had passed. Based on his failure to report, his status under the Holmes Youthful Trainee Act was revoked, and his conviction was entered.
53. Under SORA 2011, Mr. Doe #3 was retroactively re-classified as a Tier III offender, and his registration period was extended from 25 years to life.
54. Mr. Doe #3 was four years and ten months older than the girl with whom he had sex. Had the age difference been less than four years, Mr. Doe #3 would not be subject to registration.
55. Upon information and belief, Mr. Doe #3 has no other criminal convictions. John Doe #4
56. Plaintiff John Doe #4 resides in the Western District of Michigan. 57. In the summer of 2005, when Mr. Doe #4 was 23 years old, he had a sexual relationship
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with a woman he met at a nightclub. See Declaration of I.G. (Exh. 7). The club was restricted to those aged 18 and older.
58. Mr. Doe #4 did not realize that the woman had used a fake ID to get into the nightclub, and that she was actually 15. When she became pregnant, Mr. Doe #4 was arrested. It was only after Mr. Doe #4 was arrested that he learned his partner’s actual age.
59. In 2006, Mr. Doe #4 pled guilty to attempted criminal sexual conduct III. 60. Under the terms of the plea agreement, the case was to be dismissed if the baby’s DNA did not match that of Mr. Doe #4. The girl in the case had had other sexual partners, and it was unclear with whom she had become pregnant. It turned out that Mr. Doe #4 had fathered the child, and thus the case was not dismissed. 61. Mr. Doe #4 was sentenced to five years probation, which he served successfully. He also completed sex offender counseling. 62. At the time of his conviction, Mr. Doe #4 was required to register for 25 years, making him eligible for removal at age 49. 63. Under SORA 2011, Mr. Doe #4 was retroactively re-classified as a Tier III offender, and his registration period was extended from 25 years to life. 64. Upon information and belief, Mr. Doe #4’s only other criminal convictions are for driving on a suspended license.
Mary Doe 65. Plaintiff Mary Doe resides in the Eastern District of Michigan. 66. In 2003, while living in Ohio, she was convicted of unlawful sexual conduct with a minor for having a sexual relationship with a 15-year-old male. 67. She was sentenced to three years in prison.
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68. At the time, Ohio’s SORA was risk-based rather than offense-based. A person’s registration requirements, including the length and frequency of reporting obligations, were determined through an individualized adjudication of risk.
69. Based on a psychological evaluation, the court concluded that Ms. Doe was neither a “sexual predator” nor a “habitual offender.” She was assigned to the lowest risk level of the registry, which required address verification once a year for ten years.
70. Although Ohio has since moved to an offense-based registration scheme similar to Michigan’s SORA 2011 (in order to comply with the same federal Adam Walsh requirements that led to the adoption of SORA 2011), the Ohio Supreme Court has held that people like Ms. Doe (who received individualized risk-based hearings) cannot be retroactively reclassified under an offense-based scheme. The court held that such legislative reclassification of individuals who have been adjudicated by the judiciary violates the separation of powers. See State v. Bodyke, 933 N.E.2d 753 (Ohio 2010).
71. The Ohio Supreme Court also held that Ohio’s new law – which requires extensive reporting and lengthens registration periods similar to SORA 2011 – cannot be applied retroactively without violating the ex post facto clause. See State v. Williams, 952 N.E.2d 1103 (Ohio 2011).
72. Thus, in Ohio, Ms. Doe could not be required to register for more than ten years, nor could she be subjected to more significant restrictions than those imposed under the terms of her initial registration order.
73. In May 2004, after serving less than eight months, Ms. Doe was granted judicial release. Her sentence was modified to four years of probation and 200 hours of community service. She
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successfully completed both probation and sex offender therapy, and was discharged from probation in April 2008.
74. When Ms. Doe received judicial release in 2004, she was required under the terms of her probation to move to Michigan, where she lived with her parents. Under Michigan law at the time, she was required to register quarterly for 25 years, becoming eligible for removal at age 54.
75. Ms. Doe and her ex-husband have shared parenting time with their 13-year-old daughter. The daughter attends school in Michigan. Ms. Doe remarried in 2010, and her husband works in Michigan. Ms. Doe’s family, including her elderly parents and her extended family, all live in Michigan. For these reasons, Ms. Doe wishes to live in Michigan.
76. Under SORA 2011, Ms. Doe was retroactively re-classified as a Tier III offender, and her registration period was extended from 25 years to life.
77. Upon information and belief, Ms. Doe has no other criminal convictions. THE DEFENDANTS
Governor Richard Snyder 78. Defendant Richard Snyder is the Governor of Michigan. He is sued in his official capacity. 79. Pursuant to Article 5, §1 of the Michigan Constitution, the executive power of the state is vested in the governor. The Michigan Constitution further provides that the governor shall take care that applicable federal and state laws are faithfully executed. Mich. Const., Art. 5, § 8. Defendant Snyder is ultimately responsible for the enforcement of the laws of this state, and for supervision of all state departments, including the Michigan State Police. 80. The Governor is an appropriate defendant in a case challenging the constitutionality of a state statute.
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Colonel Kriste Etue 81. Defendant Colonel Kriste Etue is the director of the Michigan State Police. She is sued in her official capacity. 82. The Michigan State Police maintains Michigan’s sex offender registry. M.C.L. § 28.721 et seq. The State Police’s responsibilities include enforcing SORA 2011, maintaining the state’s database of sex offenders, maintaining an on-line public sex offender registry, registering offenders (along with other law enforcement agencies), developing registration forms, providing statutorily-required notices to registrants, collecting registration fees, and coordinating with national law enforcement and the national sex offender registry. See M.C.L. §§ 28.724, 28.724a, and 28.725 et seq. 83. The director of the Michigan State Police is an appropriate defendant in a case challenging the constitutionality of Michigan’s Sex Offender Registration Act.
FACTUAL ALLEGATIONS: HISTORICAL EVOLUTION OF SORA 2011 84. Michigan passed its first sex offender registration law in 1994. Mich. Pub. Act 295 (1994) (eff. 10/1/95). Before that time, Michigan did not require anyone to register as a sex offender for any purpose. 85. The 1994 statute established a private database containing basic information about people convicted of sex offenses. Registration information was available only to law enforcement, and was exempt from all public disclosure. A person who divulged registry information to the public was guilty of a misdemeanor, and a registrant whose information was revealed had a civil cause of action for treble damages. Mich. Pub. Act 295, Sec. 10 (1994). 86. The statute did not require regular verification or reporting. After the initial registration was completed, the only additional obligation was to notify local law enforcement within 10
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days of a change of address. The registrant did not need to notify law enforcement in person. Mich. Pub. Act 295, Sec. 5(1) (1994).
87. Registry information was maintained for 25 years for individuals convicted of one offense, and for life for individuals convicted of multiple offenses. Mich. Pub. Act 295, Sec. 5(3)-(4) (1994).
88. The statute applied retroactively to individuals whose convictions occurred before October 1, 1995, but only if they were still incarcerated, on probation or parole, or under the jurisdiction of the juvenile division of the probate court or department of social services on that date. Mich. Pub. Act 295, Sec. 3(b)-(c) (1994).
89. Since that time, the legislature has repeatedly amended the statute, each time imposing a stricter regime with new burdens on registrants, and covering more people and conduct.
90. Effective April 1, 1997, the statute’s confidentiality protections were relaxed. Law enforcement agencies were required to make registry information available to the public (for zip codes within the agency’s jurisdiction) during regular business hours. Mich. Pub. Act 494, Sec. 10(2) (1996). The public could view a paper copy of the registry by visiting their local law enforcement agency.
91. In 1999, registry information became available to the public on the Internet through the public sex offender registry. Mich. Pub. Act 85, Sec. 8(2), 10(2)(3) (1999).
92. New in-person reporting requirements were imposed, with registrants being required to report quarterly or yearly, depending on their offense. Mich. Pub. Act 85, Sec. 5a(4) (1999).
93. In addition, the 1999 amendments: expanded the list of offenses for which registration was required and the categories of individuals required to register for life; lengthened the penalties for registration-related offenses; required registrants to maintain a driver’s license or person-
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al identification card; made registry information on certain juveniles public; required fingerprinting and digitized photographs for registrants; and mandated registration for out-of-state students, people working in the state, and anyone convicted of a listed offense or required to register in another state or country. Mich. Pub. Act 85 (1999).
94. In 2002, additional requirements were imposed on both resident and non-resident registrants to report (in person) when they enrolled, disenrolled, worked, or volunteered at institutions of higher learning. Mich. Pub. Act 542, Sec. 4a (2002).
95. Amendments in 2004 required the Internet-based public sex offender registry to include photographs. Mich. Pub. Act 238 (2004). In addition, a fee was imposed on registrants. Failure to pay the fee was made a crime. Mich. Pub. Act 237 (2004).
96. The 2004 amendments also removed the registration requirement for offenders adjudicated under the Holmes Youthful Trainee Act (HYTA) after October 1, 2004, unless they lost their HYTA status. Youth assigned to HYTA before that date, however, were still required to register, though they could petition the court for reduced registration after 10 years. Mich. Pub. Acts 239, 240 (2004).
97. Further amendments, effective January 1, 2006, barred registrants (with limited exceptions) from working, residing, or loitering within 1000 feet of school property, and imposed criminal penalties for noncompliance. Mich. Pub. Acts 121, 127 (2005).
98. In addition, the penalties for registration-related offenses were increased. Mich. Pub. Act 132 (2005).
99. In 2006, the statute was amended to allow subscribing members of the public to be notified electronically when a person registers or moves into a particular zip code. Mich. Pub. Act. 46 (2006).
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100. Effective July 1, 2011, Michigan’s Sex Offender Registration Act was extensively amended to comply with the federal Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq., which is Title I of the Adam Walsh Child Protection and Safety Act of 2006 (Public Law 109-248).
101. Although states were required to comply with SORNA by July 27, 2011, or lose federal law enforcement funds, to date only 15 states have substantially complied. The vast majority of states have elected not to comply because they are concerned about the costs and effectiveness of the federal SORNA requirements.
102. As outlined in more detail below, SORA 2011 fundamentally changed Michigan’s sex offender registry by categorizing registrants into tiers; requiring in-person reporting of vast amounts of personal information; and retroactively lengthening the registration period for most registrants. In addition, SORA 2011 imposed new duties on local law enforcement agencies.
103. In sum, Michigan’s sex offender registry, which began as a private law enforcement database in 1995, has changed radically in the last 17 years. SORA 2011 subjects registrants to obligations, restraints, disabilities, and punishment of a different character and different order of magnitude than the original sex offender statutes.
FACTUAL ALLEGATIONS: TIER CLASSIFICATION AND RETROACTIVE APPLICATION OF SORA 2011 104. SORA 2011 classifies registrants into tiers. A registrant’s tier-classification determines the length of time that a person must register and the frequency of reporting. 105. Tier I registrants must register and comply with all obligations imposed by SORA 2011 for 15 years; Tier II registrants must register and comply for 25 years; and Tier III registrants must register and comply for life. M.C.L. §§ 28.722(r)-(w); 28.725(10)-(13). 106. Tier classifications are based solely on the offense of conviction.
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107. Tier classifications are not based on, and do not correspond to, a registrant’s actual risk of re-offending or the danger any registrant poses to the public.
108. Prior to SORA 2011, most Michigan registrants were required to register for 25 years. 109. SORA 2011 was applied retroactively. Registrants were assigned to a tier based solely on their offense of conviction. 110. People who previously had been required to register for 25 years, and who were retroactively assigned to Tier III, had their registration periods extended to life. There was no individualized determination about their risk or whether lifetime registration was warranted. 111. Although the plaintiffs have clinically been determined to be low risk (see below), under SORA 2011 they were retroactively classified as Tier III offenders and must register and comply with SORA 2011 until they die. 112. Even upon the clearest proof that the plaintiffs are not dangerous, there is no mechanism in the statute that would allow the plaintiffs to have their registration obligations eliminated or reduced. 113. SORA 2011 is not limited to individuals who committed sex offenses, but requires registration and reporting by individuals, such as John Doe #1, who were convicted of other offenses that do not have a sexual component. 114. SORA 2011 is not limited to convicted individuals, but requires registration and reporting by individuals, such as John Doe #2, who were never convicted of a crime. SORA 2011 also requires registration and reporting by youths aged 14 or older who were adjudicated as juveniles.
FACTUAL ALLEGATIONS: IMPACT OF SORA 2011 ON THE PLAINTIFFS 115. SORA 2011 imposes obligations, disabilities, and restraints that are so extensive that they
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cannot be set out in full here, but are instead listed in Exhibit 1, which is incorporated by reference.
116. By way of summary, SORA 2011 subjects the plaintiffs to continuous reporting,
surveillance, and supervision. In addition, SORA 2011 severely limits their ability to direct the
upbringing of their children; find housing and employment; get an education; travel; engage in
free speech activities (including use of the Internet); be free from harassment and stigma; and
understand what is required of them under the statute.
117. Finally, registration under SORA 2011 triggers a vast array of additional obligations,
disabilities, and restraints under other federal, state, and local laws, as well as private policies
barring or limiting registrants from access to goods or services available to the public.
A. Reporting, Surveillance, and Supervision
118. As Tier III registrants, the plaintiffs must report in person every three months within a
specified 15-day period, M.C.L. 28.725a(3)(c), and must provide:
• all names and nicknames, Social Security number, and date of birth; • residential address, including any address where the individual expects to
spend more than seven days, as well as the dates of any such temporary stays; • employer names and addresses, including information on any person who
agrees to hire a registrant for a temporary job, as well as the routes of travel for non-stationary employment; • schools attending or schools to which accepted; • telephone numbers registered to the individual or routinely used; • e-mail and instant message addresses, log-in names or other identifiers assigned to the individual or routinely used; • all other designations used in Internet communications or postings; • license plate and registration information for any vehicle owned or regularly operated by the individual, and the location where that vehicle is kept; • driver’s license or personal ID card; • passport and immigration documents; • occupational license information; and • a complete physical description.
M.C.L. § 28.727(1).
119. SORA 2011 also requires the plaintiffs to provide a photograph, fingerprints, and palm
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prints. If a plaintiff’s appearance changes, he or she must update the photograph. M.C.L. §§ 28.725a(5); 28.727(1)(q).
120. In addition to reporting in person at regular intervals, the plaintiffs must report in person within three business days whenever certain information changes. M.C.L. § 28.722(g). The immediate, in-person reporting requirement is triggered whenever the plaintiffs:
• change their residence; • begin, change, or discontinue employment; • enroll or dis-enroll as a student; • change their name; • intend to travel for more than seven days; • establish an e-mail address, instant message address, or other Internet
designation; and • buy or begin using a vehicle, or cease owning or using a vehicle. M.C.L. § 28.725(1). 121. There are no good-cause exceptions to the reporting requirements or to the “immediate” notification requirements. Regardless of illness, injury, transportation problems, or other emergencies, the plaintiffs must report in person within three days or face criminal charges. 122. SORA 2011’s reporting, surveillance, and supervision requirements are similar to, but more restrictive and onerous than, the reporting, surveillance, and supervision that the plaintiffs experienced while serving their sentences on probation or parole. 123. Under SORA 2011, the plaintiffs must report significantly more information than what they were required to report while they were serving their sentences on probation or parole. 124. SORA 2011’s requirement that minor changes be reported in person within three business days is a level of reporting that far exceeds what the plaintiffs experienced while they were serving their sentences on probation or parole. 125. As a result of SORA 2011’s immediate reporting requirements, coupled with the quarterly reporting requirements, the plaintiffs must – for the rest of their lives – report in person to
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law enforcement with a frequency that is similar to, and often greater than, their reporting obligations when they were on probation or parole.
126. For the plaintiffs, the lifetime surveillance imposed by these reporting requirements is not only intrusive, but burdensome. The time required to register or update information varies depending on where and when the plaintiffs report. Each registration can take up to an hour-anda-half, not including travel time.
B. Family and Parenting 127. SORA 2011 has severely impaired the plaintiffs’ family relationships and parenting, in large part because the statute bars the plaintiffs from “loitering” within 1000 feet of school property. M.C.L. § 28.734. “To 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.” M.C.L. § 28.733(b). This provision contains no exception for the plaintiff-parents, who are observing or contacting their own children. 128. For example, Mr. Doe #1’s fiancé has a 14-year-old daughter. Mr. Doe #1 cannot attend his future step-daughter’s school and extra-curricular events. 129. The same is true for Mr. Doe #2. His ability to participate in the upbringing of his daughter is limited because, as a registered sex offender, he cannot participate in her school and extra-curricular events. 130. Mr. Doe #2’s status as a registered sex offender was cited by a judge in support of an order awarding primary custody of his daughter to her mother. 131. Mr. Doe #3’s status as a registered sex offender, too, has interfered with his family relationships. 132. Mr. Doe #3 is married and has two boys, ages 4 and 8. He and his wife, who is a
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schoolteacher, are expecting their third child in the fall of 2012. 133. Due to his status as a registered sex offender, Mr. Doe #3 has been barred from attend-
ing parent-teacher conferences. His older son plays basketball and football, while his younger son plays soccer. Because of the vagueness of the statute, Mr. Doe #3 does not know if or how SORA 2011 applies to his parenting activities. He is uncertain about where he can and cannot take his sons. He does not know which of their events he can or cannot attend, and he fears prosecution if he goes to their games.
134. Mr. Doe #4’s status as a registrant has similarly strained his family relationships. 135. Mr. Doe #4 is married and has two children, ages 10 and 4, with his wife. 136. Other parents do not want their children to be friends with Mr. Doe #4’s children because Mr. Doe #4 is on the registry. 137. Mr. Doe #4’s wife left him in part because his status as a registered sex offender harmed the family. She has told him that if he is able to get off the registry, she will return. 138. Due to his status as a registered sex offender, Mr. Doe #4 is unable to participate in many parenting activities. He cannot attend his 10-year-old daughter’s volleyball games, basketball games, and other school or extra-curricular functions. Mr. Doe #4’s daughter asks him why he never comes to her events. Mr. Doe #4 also cannot pick up or drop off his daughter at school. Mr. Doe #4 is concerned that he will be similarly unable to participate in his son’s education and activities when the boy starts school. 139. Mr. Doe #4 also has a five-year-old daughter with the victim in his case. The victim/ mother very much wants Mr. Doe #4 and their child to have a normal father/daughter relationship, but SORA 2011 has severely limited his ability to do so. See I.G. Decl. (Exh. 7). 140. Ms. Doe’s status as a registered sex offender has likewise impaired her ability to raise
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her daughter. When her daughter was attending school in Ohio, Ms. Doe was able to attend parent-teacher conferences, school events, and extra-curricular programs, and otherwise to participate in her daughter’s education.
141. Now that Ms. Doe’s daughter attends school in Michigan, Ms. Doe is barred from parent-teacher conferences, the school building, and extra-curricular events. She has been unable to attend her daughter’s school plays and will be unable to attend her daughter’s eighth grade graduation.
C. Housing 142. SORA 2011 also severely limits the plaintiffs’ access to housing. 143. SORA 2011 bars the plaintiffs from “residing” within 1000 feet of school property, making a substantial amount of housing unavailable as a matter of law. M.C.L. § 28.735. The plaintiffs are also prohibited from living with family members if those family members live within 1000 feet of school property. 144. Because sex offender registry address information is public, many landlords outside geographic exclusion zones refuse to rent to registrants, since their properties can then be easily identified on the registry. 145. When Mr. Doe #1 was first released from prison, he hoped to live with his family until he could get back on his feet. He could not live with either his mother or his sister, however, because they both lived within 1000 feet of a school. He also could not live with another sister or his aunt because the Department of Corrections does not allow registered sex offenders to live in homes with children (even though Mr. Doe #1’s crime was a non-sex offense robbery that had occurred two decades earlier). He therefore was released to a half-way house. 146. Mr. Doe #1 was rejected by landlords because of his status as a registered sex offender.
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He was finally able to get an apartment when he had a friend lease a unit for him. He now lives in a flat owned by his aunt.
147. Mr. Doe #2’s status as a registrant has likewise prevented him from finding housing. When looking for apartments, Mr. Doe #2 was rejected because he is a registrant.
148. Mr. Doe #2 has been unable to secure his own housing, and stays with friends or family if they will let him and if their homes are not within a geographic exclusion zone.
149. At one point Mr. Doe #2 asked his cousin for a place to stay. His cousin refused, explaining that the neighbors would find Mr. Doe #2 on the registry, and would then seek to have both of them (Mr. Doe #2 and his cousin) evicted.
150. As a disabled military veteran, Mr. Doe #2 could qualify for subsidized housing. He identified a program that would have provided him with a Section 8 voucher for his own apartment. But under federal law, individuals subject to lifetime sex offender registration are barred from subsidized housing. Therefore Mr. Doe #2 was ineligible. 24 C.F.R. § 5.856.
151. Mr. Doe #3 and his wife would like to move their growing family to a larger home, but they are restricted in their search for a new house, as they cannot move to a home that is within 1000 feet of a school.
152. Likewise, because Mr. Doe #4 is on the registry, he has had severe housing problems in addition to the loss of his home to foreclosure when the registry cost him his job (see below).
153. When Mr. Doe #4 has tried to rent an apartment, landlords have told him that they will not rent to anyone who is on the sex offender registry.
154. For a time Mr. Doe #4 was registered at his mother’s address. But neighbors in her apartment complex complained, and his mother was threatened with eviction, so he left.
155. Mr. Doe #4 then lived with his sister. But in February 2012, the sister’s landlord
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threatened her with eviction if Mr. Doe #4 continued to live with her. 156. Mr. Doe #4 is now homeless. 157. Although Mr. Doe #4’s family members would be happy to have him stay if he were
not on the registry, they fear that they will lose their housing if they allow him to reside with them.
158. The geographic restrictions also affect Ms. Doe’s ability to secure stable housing. Several years ago, she and her husband were able to rent a home from one of her distant cousins. When the cousin lost the home to foreclosure, Ms. Doe and her husband were notified by the bank that they might be forced to vacate the home on short notice.
159. Despite an exhaustive search, Ms. Doe and her husband were unable to find alternate affordable housing that was not within a restricted zone. Although at present the bank has allowed Ms. Doe and her family to remain in the home, she is afraid that if she is required to vacate the home on short notice in the future, she and her husband will be unable to find housing.
D. Employment 160. SORA 2011 bars the plaintiffs from working within 1000 feet of school property, making a substantial number of jobs unavailable to the plaintiffs as a matter of law. M.C.L. § 28.735. 161. Moreover, under SORA 2011, information about employers who hire the plaintiffs is posted on the public sex offender registry. M.C.L. § 28.728(2)(d). The public posting of employer information creates a significant disincentive for employers to hire the plaintiffs. 162. Mr. Doe #1 has repeatedly lost employment opportunities because of his status as a registered sex offender. When he was first released from prison, he participated in a reentry program designed to help him find employment.
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163. Mr. Doe #1 actively sought work and flagged potential jobs off employment lists. His case manager told him time and time again that those employers would not hire registered sex offenders. The occupations where he was denied employment included garbage collection and fast food restaurant work. His job search was further restricted because he could only apply for jobs located more than 1000 feet from a school.
164. Mr. Doe #1 tried to open his own business as a subcontractor on a home preservation project to restore foreclosed homes. Mr. Doe #1’s parole agent required him to close the business because many contracting jobs are within geographic exclusion zones where registered sex offenders are prohibited from working.
165. Mr. Doe #1 finally convinced the organization that ran his reentry program to hire him for its programs for special needs adults, and he has been successfully employed there since.
166. Mr. Doe #2 has also been harmed in his search for work. Although he need not list his sealed HYTA case on job applications asking whether he has a criminal record, employers learn of his sealed case and refuse to hire him because he is on the registry.
167. Mr. Doe #2 also hoped to start a program mentoring at-risk youth by engaging them in construction projects. He was unable to do so because his status as a registered sex offender would have made it impossible for him to work with youth.
168. Mr. Doe #3 is a co-owner of a family business, and has worked there for many years. Although he is employed now, he is concerned that if he were unable to continue working in the family business, his status as a registrant would prevent him from finding another job.
169. As to Mr. Doe #4, his status as a registered sex offender has prevented him from finding or holding a job.
170. At the time of his offense and for much of the time he was on probation, Mr. Doe #4
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worked at an auto parts factory. He did well, repeatedly earning raises over a three-year period. 171. In 2008, however, an anonymous caller informed the factory’s management that Mr.
Doe #4 was listed on the sex offender registry. Mr. Doe #4 was fired, and escorted off the premises by security.
172. The fact that Mr. Doe #4 was listed on the public sex offender registry made information about his offense readily available to the anonymous caller and directly contributed to Mr. Doe #4’s firing.
173. Mr. Doe #4 could not pay his bills after he was fired. As a result, he lost his home to foreclosure, and his car was repossessed.
174. Mr. Doe #4 has had great difficulty finding work since then because so few employers will hire registrants.
175. Mr. Doe #4 found a job with a finishing company and worked there for approximately six months. Then the newspaper Busted, which republishes photos and information from the sex offender registry in a newsprint format, published the registry listing for Mr. Doe #4. The newspaper appeared in the break room at his work. Mr. Doe #4 lost his job the next day.
176. The geographic restrictions on where registrants can work have further harmed Mr. Doe #4’s job search. For example, Mr. Doe #4 was offered a factory job by American Staffing, but the factory was within 1000 feet of a school. Therefore Mr. Doe #4 could not accept the offer.
177. Mr. Doe #4 is presently unemployed, and has no source of income other than odd jobs. 178. Ms. Doe’s status as a registrant has also impaired her ability to find work. Ms. Doe recently earned a degree in medical billing. Through her career services office she was placed in an externship. Although the host organization has been pleased with her work, the employer is concerned about hiring her because the employer’s information would then be posted on the sex
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offender registry. 179. Ms. Doe has submitted over 100 resumes for other jobs, but has been unable to find
employment. E. Education
180. SORA 2011 has also made it more difficult for the plaintiffs to get an education. 181. For example, Mr. Doe #2 wanted to pursue a degree as a medical assistant. When he applied to one such program through the Everest Institute, he was denied because he was on the sex offender registry. Because Mr. Doe #2’s HYTA case is sealed, the Everest Institute would not have known of his history but for the fact that Mr. Doe #2 is listed on the registry. 182. Mr. Doe #2 was eventually able to earn a degree as a medical assistant through another institution. He then wanted to become a cardio-vascular stenographer. That degree requires clinical courses. Because of Mr. Doe #2’s status as a registered sex offender, he is not allowed to take clinical courses in a hospital, and therefore cannot pursue his chosen degree. 183. Mr. Doe #3’s status as a registered sex offender has limited his ability to get an education. Mr. Doe #3 enrolled in college in 2005. When he learned that he had to report that he was attending college, he was concerned that his college classmates would find out that he was a registered sex offender. Mr. Doe #3 dropped out of school rather than risk facing their hostility. 184. Because of the registry, Mr. Doe #4 has likewise had difficulty getting an education. He was rejected by several GED programs because he is a registered sex offender. 185. With the assistance of his probation officer, Mr. Doe #4 was eventually able to identify a GED program that accepts registrants, and is currently pursuing his GED.
F. Travel 186. The plaintiffs’ status as registrants has severely restricted their ability to travel.
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187. The plaintiffs must provide advance notice when they intend to travel anywhere for more than seven days. They must tell the police where they are going, where they will stay, how long they will be there, and when they will return. M.C.L. § 28.725(1).
188. The plaintiffs must provide 21 days advance notice if they travel outside the U.S. for more than seven days. M.C.L. § 28.725(7).
189. In addition, the plaintiffs must plan their travel so that they are able to register in person during the first 15 days of January, April, July and October, as required by the statute.
190. If the plaintiffs travel, they must comply with any applicable sex offender registration laws in other jurisdictions. Because sex offender laws are exceedingly complex and vary from state to state, it is extremely difficult to obtain accurate information about either affirmative reporting obligations (such as registering one’s presence in a state) or prohibitions on ordinary behavior (such as visiting a library or park) in other jurisdictions. See Consequences Triggered by Sex Offender Registration: A National Sample, Attachment A to Declaration of James J. Prescott (Exh. 8).
191. Mr. Doe #1 visits friends and family for no more than six days at a time because otherwise he would be required to notify law enforcement in person about his travel plans.
192. Mr. Doe #2 is a military veteran, with friends all over the country and all over the world. He enjoys travel. He frequently drives to see his parents in Florida and his friends in Georgia, Maryland, Tennessee, and other places.
193. Although Mr. Doe #2 would like to take extended trips to visit his friends and family, he does not do so, but rather limits his trips to seven days or less, including driving time.
194. Mr. Doe #2 would like to travel internationally to see friends from the military who are stationed overseas. One of his friends, a paraplegic military veteran, has invited Mr. Doe #2 to
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accompany him on a trip to Panama. 195. Mr. Doe #2 has been unable to take these trips because SORA 2011 requires extensive
advance notice for international travel. Mr. Doe #2 is concerned that he cannot comply with the restrictions on international travel relating to where he will be staying at each stage of his trip – information that he cannot know in advance given the nature of his travel.
196. Mr. Doe #3’s status as a registrant has also impaired his ability to travel. In April 2011, Mr. Doe #3 took his wife on a four-day getaway to a resort in Mexico to celebrate her graduation from a program at the University of Michigan. On their return, border agents separated him from his wife and interrogated him for hours. He was asked questions about his sex offender status. Because of that experience, Mr. Doe #3 is reluctant to travel outside the United States again.
197. Mr. Doe #4’s status has limited his travel as well. In 2007, Mr. Doe #4 wanted to travel to Puerto Rico to visit a sick relative, but was unable to do so because his registration obligations made the trip too complicated, and put him at risk of felonious noncompliance.
198. Ms. Doe and her husband would like to take extended trips to visit friends and family. However, they only take trips that last seven days or less, including driving time, due to the requirement that Ms. Doe report in person if she goes anywhere for more than seven days.
199. On one occasion, Ms. Doe took a wrong turn while driving in Detroit, and accidentally got into a traffic lane leading to the tunnel to Canada. Although Ms. Doe did not cross into Canada, when she turned around, she had to go back through the United States border checkpoint.
200. Because of Ms. Doe’s status as a registrant, border agents demanded that Ms. Doe and her family get out of the vehicle. The agents searched the car, interrogated Ms. Doe, her husband, and her daughter separately, and suggested that Ms. Doe was abducting her daughter. The family was eventually released.
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201. Because of the requirements of SORA 2011, Ms. Doe has decided not to travel outside the United States, although she would like to do so.
G. Speech & Internet 202. SORA 2011 severely restricts the plaintiffs’ ability to speak freely on the Internet. The plaintiffs not only must provide law enforcement with all electronic mail addresses, instant message addresses, log-in names, or other identifiers that are assigned to or routinely used by them, M.C.L. § 28.727(1)(i), but must also report in person within three days whenever they establish any electronic mail address, instant message address, or other designation used in Internet communications or postings. M.C.L. § 28.725(1)(f). 203. The plaintiffs are concerned about using the Internet because SORA 2011 is unclear about whether, for example, they must report immediately and in person if they set up an on-line account to pay their taxes, register with Netflix, purchase or review products on Amazon, or use a college on-line bulletin board. 204. Mr. Doe #4 does not use the Internet because he would be required under SORA 2011 to register all email and Internet identifiers, and would need to report constantly in order to use different websites with different user-names. 205. Mr. Doe #4 would like to communicate with his family on Facebook, but does not do so because he would have to register information about his account. 206. Ms. Doe’s status as a registrant similarly restricts her freedom to use the Internet. Ms. Doe has twice established a Facebook account, only to have it deleted without notice. Although Facebook gave her no reason for shutting down her account, Facebook prohibits registrants from using its site. Ms. Doe had been using her Facebook account both to communicate with friends and family and to organize a high school reunion. She is now unable to do so.
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207. In addition, Ms. Doe is afraid that because she must provide all email and Internet identifiers pursuant to SORA 2011, her Internet use will be monitored.
H. False Information and Public Stigmatization 208. The sex offender registry publicly and falsely labels Mr. Doe #1 as a “convicted sex offender,” which he is not, as he was never convicted of a sex offense. 209. The sex offender registry publicly and falsely labels Mr. Doe #2 as a “convicted sex offender,” which he is not, as his case was dismissed and he was never convicted of a crime. 210. The public registry website labels registrants by tier. M.C.L. § 28.728(2)(l). All of the plaintiffs are labeled as Tier III, which stigmatizes them, and publicly and falsely identifies them as among the most dangerous sex offenders on the registry. 211. The public registry website posts extensive personal information about each registrant, including residential address, employer address, date of birth, school information, vehicle information, physical description (weight, height, etc.), and a photograph. M.C.L. § 28.728(2). 212. Because they are stigmatized as sex offenders on the public registry website, the plaintiffs and their families are subjected to harassment, social ostracism, and even threats of violence. 213. For example, in the fall of 2010, Mr. Doe #4 received an anonymous death threat by mail. Inside an envelope was a print-out of his page from the sex offender registry with his photo. His eyes were blacked out on the photo, and on the paper were the words “You will die.” Mr. Doe #4 has also been called a child molester on the street, and his wife is regularly asked why she is married to a sex offender.
I. Vagueness, Strict Liability, and Impossibility of Compliance 214. The plaintiffs have been further harmed because the restrictions and obligations of
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SORA 2011 are so vague that the plaintiffs are unable to know whether or not they are in violation of the law, or are so extensive and pervasive that the plaintiffs are literally unable to comply with the law. Moreover, different law enforcement agencies in different places apply the requirements of SORA 2011 differently.
215. SORA 2011’s requirements for reporting personal information are so vague that the plaintiffs do not understand what information must be reported, or what changes in information subject them to the in-person immediate reporting requirement.
216. For example, Mr. Doe #1’s vehicle breaks down frequently. He does not know whether he must report each such period of non-use under M.C.L. § 28.725(1)(g), which requires him to report in person within three days if “operation of [his] vehicle is discontinued.”
217. SORA 2011 also requires Mr. Doe #1 to report the location where he stores his vehicle. M.C.L. § 28.727(1)(j). He does not know if he must re-register each time he takes his car to the garage for repairs.
218. Similarly, Mr. Doe #4 is confused about the vehicle reporting requirements. He does not have a vehicle of his own, but has been told by the police that if he borrows a car more than three times, he must immediately report in person to provide the vehicle information. M.C.L. § 28.727(1)(j) (“regular operation” of a vehicle).
219. Mr. Doe #4 does not have a phone of his own. He is unclear about whether M.C.L. § 28.727(1)(h) requires him to register his mother’s telephone number if he uses her phone on occasion, including to get messages from counsel.
220. Ms. Doe has registered a vehicle that she owns, but when it breaks down, she sometimes borrows her parents’ cars. Neither she (nor counsel) could determine whether her use of her parents’ cars qualifies as “regularly operat[ing]” a vehicle. M.C.L. § 28.725(1)(g).
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221. The plaintiffs who use the Internet are also unable to determine what information they must report under M.C.L. § 28.725(1)(f).
222. The plaintiffs often cannot know if they are working, residing, or “loitering” within 1000 feet of school property because the property boundaries are unknown and the distances are impossible to measure without sophisticated equipment.
223. For example, Mr. Doe #1, when looking for an apartment, could not determine whether or not residences were within a geographic exclusion zone. He did not know whether the 1000 feet was measured building to building or property-line to property-line. He also had no easy way to gauge where school property lines were located.
224. Similarly, Mr. Doe #4 does not know whether he can take his own children to a playground on school property, or to a park, if other children are present. He does not know whether he can attend a minor cousin’s birthday party in a public park, or whether he can go to a mall, where children may be present. The risk of a wrong decision is a criminal charge.
225. In discussing this case with counsel, the plaintiffs learned of many obligations and restrictions of which they were previously unaware. All the plaintiffs are concerned that they will inadvertently violate SORA 2011’s requirements because they do not understand what they are.
226. Finally, SORA 2011 imposes criminal liability despite the impossibility of compliance. SORA 2011 imposes liability regardless of whether illness, injury, or practical difficulties make compliance impossible.
227. For example, since becoming homeless Mr. Doe #4 has been unable to comply with M.C.L. § 28.725a(7), which requires him to maintain a driver’s license or personal identification card “with the individual’s current address.” The Secretary of State will not issue identification
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without an address, and therefore Mr. Doe #4, who is registered as homeless, cannot comply with the requirement that his license match his registration information.
228. Mr. Doe #4 also has difficulty complying with the reporting requirements because he does not have a vehicle and cannot arrange for transportation to update his information within three days.
229. The plaintiffs fear that despite their best efforts to understand and comply with the law, and despite the absence of any intention to violate the law, they will be held strictly liable for any failure to comply.
230. SORA 2011 imposes penalties of up to 10 years imprisonment for violations of the Act. M.C.L. §§ 28.729(1); 28.734(2); 28.735(2).
J. Consequences Beyond SORA 2011 231. Because the plaintiffs are required to register as sex offenders under SORA 2011, they are also subject to a vast and labyrinthine array of laws and ordinances imposed on registered sex offenders by the federal government, other state or tribal governments, and local municipalities. See Prescott Decl., at 11-12 (Exh. 8); and Attachment A to Decl. (Consequences Triggered by Sex Offender Registration: A National Sample). 232. A compendium of the most significant state laws (which does not include federal, tribal, or local laws, and which disregards many of the more minor requirements) contains over 1000 pages of obligations and restraints. Id. at 9. 233. Because registration in one state generally triggers registration in another state, the fact that the plaintiffs are subject to SORA 2011 means they are also subject to the sex offender laws of other jurisdictions if they travel or move. 234. In addition, because the plaintiffs are required to register as sex offenders under SORA
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2011, they are subject to policies by private entities that refuse to provide goods or services to registered sex offenders. But for the fact that the plaintiffs are labeled by the state as registered sex offenders, the goods and services provided by those private entities would generally be available to them.
FACTUAL ALLEGATIONS: SORA 2011 IS NOT RATIONALLY RELATED TO THE GOAL OF PUBLIC SAFETY
235. The plaintiffs incorporate by reference the declarations of Dr. J.J. Prescott (Exh. 8); Dr. Jill Levenson (Exh. 9); Dr. Janet Fay-Dumaine (Exh. 10); Peter Wagner, Esq. (Exh. 11); and Anne Yantus, Esq. (Exh. 12), all of which are attached.
236. The avowed purpose of Michigan’s sex offender registry is to “prevent[] and protect[] against the commission of future criminal sexual acts by convicted sex offenders.” M.C.L. § 28.721a.
237. The idea that SORA 2011 will promote public safety is based on the assumption that sex offender registration will reduce recidivism by convicted offenders and thereby reduce the risk to the public.
238. That assumption is false. 239. In fact, the research shows that public registries are likely to increase, rather than decrease, recidivism, and are therefore counterproductive to their avowed purpose of public protection. 240. As outlined in more detail in the declaration of James J. Prescott (Exh. 8), large-scale empirical research on the impact of sex offender registries has found that public sex offender registries have likely increased, and almost certainly not reduced, the frequency of sex offenses. (By contrast, the research has also found that private law enforcement registries have reduced recidivism against family members, neighbors, etc., though not against strangers.)
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241. Specifically, this research shows that the more people a state subjects to public sex offender registration, the higher the relative frequency of sex offenses in that state. Public registries (based on the offense of conviction) correlate with an increase in frequency of sex offenses against all types of victims (family members, neighbors, acquaintances, and strangers). Prescott Decl., at 3-4 (Exh. 8).
242. Applied to Michigan, this research suggests that SORA 2011 contributes to sex offense rates in Michigan that are 10% higher than they would be without SORA 2011. Prescott Decl., at 3 (Exh. 8).
243. Although it may seem counter-intuitive that public registration increases rather than decreases recidivism, these results reflect the fact that sex offender registration and the attendant consequences exacerbate risk factors for recidivism, such as lack of employment and housing, and prevent healthy reintegration into the community. Prescott Decl., at 7-8 (Exh. 8).
244. These results are mirrored by other evidence-based research on the impact of sex offender registration. Most studies reveal no significant reduction in sex crime rates that can be attributed to sex offender laws and policies. Rather, there is a significant body of empirical work that overwhelmingly shows that, at best, public registration makes no difference to recidivism rates, and that it may well be counter-productive. See Levenson Decl., at 3 (Exh. 9); Prescott Decl., at 12 (Exh. 8).
245. The two studies that detected reductions in sex crime recidivism after the passage of registration laws were both in states that have risk-based, rather than offense-based, classification, and that limit public notification to those offenders who have been individually determined to pose the greatest threat to community safety. See Levenson Decl., at 3 (Exh. 9).
246. Moreover, there is no research to support the hypothesis that registrants who live closer
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to child-oriented settings are more likely to reoffend. Rather, the research shows that where registrants live is not a significant contributing factor to recidivism. See Levenson Decl., at 4 (Exh. 9).
247. Residency restrictions reduce housing options for registrants, leading to housing instability. Housing instability is consistently correlated with higher criminal recidivism, and may help account for the increases in recidivism triggered by registration. See Prescott Decl., at 7-8 (Exh. 8); Levenson Decl., at 5-6 (Exh. 9). Thus, residency restrictions are likely to increase rather than decrease sexual offending.
248. Similarly, requirements that interfere with employment, social support, and engagement in pro-social activities undermine the avowed public safety goals of sex offender registration laws. Social policies that ostracize and disrupt the stability of sex offenders are counterproductive to increasing public safety. See Levenson Decl., at 7, 10 (Exh. 9).
249. Failure to comply with registration requirements does not predict sexual recidivism. Levenson Decl., at 11-12 (Exh. 9).
250. There is no empirical evidence to support the notion that more frequent registration check-ins lower recidivism, nor is there evidence that reporting additional information (e.g., email addresses, employment information) reduces recidivism. Levenson Decl., at 10 (Exh. 9).
251. In sum, SORA 2011 is not rationally related to the public safety goal it purports to serve.
FACTUAL ALLEGATIONS: THE REQUIREMENTS OF SORA 2011 BEAR NO REASONABLE RELATIONSHIP TO THE RISK THAT INDIVIDUAL REGISTRANTS
POSE TO THE COMMUNITY 252. SORA 2011 is also premised on the assumption that all individuals convicted of sex offenses pose a great risk to public safety, which justifies continuous and lengthy supervision
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and restrictions. 253. In fact, while some individuals convicted of sex offenses will reoffend, the vast
majority of new sex offenses are committed not by registered offenders, but by individuals without prior sex offenses. For example, a study in New York found that 95% of all arrests for sexual offenses were for individuals who did not have a prior sexual offense conviction and who were not on a sex offender registry. See Levenson Decl., at 8 (Exh. 9).
254. Among those with prior sex offenses, recidivism rates vary with the presence of certain risk factors. See Levenson Decl., at 8 (Exh. 9). While some individuals convicted of sex offenses pose a significant risk to public safety, most do not.
255. Most sex offenders do not re-offend sexually. First-time sexual offenders are significantly less likely to re-offend than those with multiple sexual convictions, and offenders over the age of 50 are less likely to re-offend than younger offenders. Moreover, recidivism rates differ significantly depending on the nature of the offense (e.g., rape, incest, child victim, etc.).
256. Research indicates that the risk for sexual re-offending is reduced by half when a person has spent 5-10 years offense-free in the community. The risk continues to decline the more time the person spends offense-free in the community. Risk for sexual recidivism also declines with age. See Levenson Decl., at 10 (Exh. 9).
257. SORA 2011 is not based on risk. The tier to which an individual is assigned, whether an individual is listed on the public registry, and how long an individual must register, are all based solely on the offense of conviction, not on the individual’s level of risk.
258. Individuals classified as Tier III under SORA 2011 are often at lower risk to reoffend than individuals classified as Tier I or Tier II. The result of this offense-based registration system is that the public’s and law enforcement’s ability to identify sexually dangerous persons is
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significantly reduced. See Levenson Decl., at 2 (Exh. 9). 259. Because recidivism risk declines significantly with advancing age and with time spent
offense-free in the community, requiring registration for 25 years to life is both inefficient and unnecessary. See Levenson Decl. (Exh. 9) at 10.
260. In addition, SORA 2011, by focusing on the danger posed by strangers (who can be identified through the registry), misidentifies the source of risk. In 93% of cases of child sexual abuse, the offender was a family member or acquaintance, not a stranger listed on the registry.
261. Public sex offender registration and residency restrictions, which focus on “stranger danger,” give parents a false sense of security by implying that knowing where sex offenders live or banishing them from the community in fact reduces the risk of sex offenses being committed, when such measures do not have this effect. See Levenson Decl., at 9 (Exh. 9).
262. In sum, the requirements of SORA 2011 bear no rational relationship to the risks that individual registrants pose to the community.
FACTUAL ALLEGATIONS: THE PLAINTIFFS’ RISK LEVELS 263. Actuarial risk assessment instruments – which are used to determine the statistical likelihood that an individual will reoffend based on known diagnostic indicators – are far better at predicting recidivism risk than the fact of a conviction. See Levenson Decl., at 8 (Exh. 9). 264. The most commonly used and well-researched risk instrument is the Static-99. The Static-99 is designed to assist in the prediction of sexual recidivism for male sexual offenders. The Static-99 has demonstrated good predictive accuracy in multiple validation studies and offers a firm scientific basis for assessing the likelihood that an individual convicted of a sex offense will re-offend. Id. 265. The Static-99 is easily scored by anyone trained to do so. Id.
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266. Janet Fay-Dumaine, Psy. D., a licensed psychologist, conducted actuarial risk assessments of plaintiffs John Does #2-4 using the Static-99R (the most recent version of the Static-99).
267. John Doe #1 could not be scored as he did not commit a sex offense. The Static-99 also could not be used for Mary Doe, as it has not been validated for female offenders. Fay-Dumaine Decl., at 1, 4 (Exh. 10).
268. John Does #2-4 all received a Static-99R score of “2”. Offenders from routine correctional samples with a score of “2” have been found to sexually reoffend at a rate of only five percent (or one in 20) over five years. See Fay-Dumaine Decl., at 1 (Exh. 10).
269. Because sexual offending decreases steadily with age, the Static-99R incorporates age as a risk factor. John Does #2-4 are all currently under age 35. At the age of 35, their Static-99R scores will drop to a “1”, and their recidivism risk will drop to 3.8%. As they grow even older, their recidivism risk will continue to decrease. See Fay-Dumaine Decl., at 1, 3 (Exh. 10).
270. Although the Static-99R could not be scored for Mary Doe, research on female sexual offenders has found that they have “an ‘extremely low’ rate of sexual recidivism” (between 13%). Fay-Dumaine Decl., at 4 (Exh. 10).
271. Although the plaintiffs are classified as Tier III offenders and required to register for life, actuarial risk assessment indicates that they are in fact extremely low risk. Moreover, the nature of their offenses and the length of time that they have successfully lived offense-free in the community also indicate that they are very unlikely to reoffend.
FACTUAL ALLEGATIONS: GEOGRAPHIC EXCLUSION ZONES 272. Under SORA 2011, the plaintiffs are barred from residing, working, or “loitering” within a “student safety zone,” defined as 1000 feet from school property. M.C.L. §§ 28.733.
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273. The State of Michigan does not make maps available to the public showing where the exclusion zones are located or what their boundaries are.
274. It is impossible for ordinary people to identify the areas that are inside and outside the exclusion zones. The task is difficult even for experts with sophisticated mapping technology. Distances are difficult to estimate or measure and property boundaries are difficult to locate. Moreover, exclusion zones often have irregular shapes, because they are measured from property boundaries and because the zones overlap. Exclusion zones are not shaped like simple circles around a fixed point. Wagner Decl., at 4 (Exh. 11).
275. It is impossible for the plaintiffs to comply with the prohibition on “loitering,” which requires moment-to-moment knowledge of whether or not they are in an exclusion zone. Wagner Decl., at 6 (Exh. 11).
276. The exclusion zones cover vast areas, especially in urban and suburban regions. Because exclusion zones are measured as the crow flies, rather than as people actual travel between two points, some exclusion zones cover areas that are much further than 1000 feet from a school, in terms of the travel distance. Wagner Decl., at 6-10 (Exh. 11).
277. Exclusion zones put a significant percentage of cities and towns off-limits. As a result, exclusion zones severely restrict access to employment and housing, and limit registrants’ ability to engage in normal human activity. Wagner Decl., at 10 (Exh. 11).
FACTUAL ALLEGATIONS: CENTRALITY OF REGISTRATION TO PLEA NEGOTIATIONS 278. Because of the severe burdens associated with sex offender registration, the issue of whether a conviction will result in registration is critical for criminal defendants. Yantus Decl., at ¶¶ 5-7 (Exh. 12). 279. The choice whether or not to plead guilty often turns on whether a defendant must
40

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register, for how long a defendant must register, and whether registration is public or private. Yantus Decl., at ¶¶ 5-7 (Exh. 12).
280. The plaintiffs elected to waive their constitutional right to trial and pled guilty based on their understanding of the consequences of their pleas.
281. SORA 2011 has fundamentally, and retroactively, altered the consequences of their pleas. FACTUAL ALLEGATIONS: UNFUNDED COSTS TO LOCAL LAW ENFORCEMENT
282. SORA 2011 imposes new unfunded obligations on local law enforcement agencies. 283. As set forth above, SORA 2011 mandates that local law enforcement agencies collect, maintain, and report far more, and far more detailed, information about registrants than was true in the past. See Exh. 1. 284. The new requirement for in person reporting of a much broader range of information increases the number of interactions that local law enforcement must have with registrants and the amount of time that local law enforcement must devote to registration and monitoring. Id. 285. SORA 2011 mandates that local law enforcement agencies register and monitor registrants for much longer periods of time. Upon information and belief, under SORA 2011, about 80% of registrants are now classified as Tier III, which means that they must report quarterly for life. 286. SORA 2011 also imposes new obligations with respect to enforcement. If a registrant fails to register or update registration information as required, local law enforcement must within three days: determine if the individual has absconded or is locatable; notify the State Police; revise the information in the registry to reflect that the person has absconded or cannot be found; seek a warrant for the individual’s arrest; and enter information into the national crime informa-
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tion center wanted-person file. M.C.L. § 28.728a. 287. Upon information and belief, SORA 2011 increases the costs borne by local law
enforcement agencies in registering and monitoring sex offenders, and in enforcing the act. 288. While to date no published information spells out the increased costs of SORA 2011 to
local Michigan law enforcement, a study of Texas municipalities facing similar changes found that registering offenders under the Adam Walsh Act would cost an additional $14 million per year for cities and counties statewide. See Tim Brown, Texas Association of Counties, Costs to Local Governments from Implementing the Adam Walsh Act (Oct. 19, 2010) (Exh. 13).
289. SORA 2011 increases the one-time registration fee paid by each new registrant by $15 (from $35 to $50). M.C.L. § 28.725b(1).
290. SORA 2011 increases the portion of the fee allotted to local courts and local law enforcement by $10 (from $10 to $20). M.C.L. § 28.725b.
291. This increase of $10 per new registrant is the sole source of funding for all of the increased local government activity required by SORA 2011 for the registration and monitoring of both current and future registrants.
292. The Senate Fiscal Impact Statement estimated that, for the entire state, the fee increase would result in an increase of only $20,000 annually, to be divided by local agencies state-wide.
293. Upon information and belief, the minimal additional revenue provided to local law enforcement under SORA 2011 is far below the actual necessary costs to local law enforcement of implementing SORA 2011.
CLAIMS FOR RELIEF COUNT I: VIOLATION OF THE EX POST FACTO CLAUSE 294. The retroactive application of SORA 2011 violates the Ex Post Facto Clause of the U.S.
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Constitution, Art. I, § 10, cl. 1, because it makes more burdensome the punishment imposed for offenses committed prior to enactment of SORA 2011, and it applies SORA 2011 retroactively.
COUNT II: VIOLATION OF THE DUE PROCESS CLAUSE (Travel) 295. The right to travel is a fundamental right that is protected under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 296. SORA 2011 substantially interferes with the plaintiffs’ ability to travel. 297. SORA 2011 does not provide for any individualized consideration before restricting the plaintiffs’ right to travel. 298. SORA 2011 violates the plaintiffs’ fundamental right to travel because it is not narrowly tailored to serve a compelling state interest.
COUNT III: VIOLATION OF THE DUE PROCESS CLAUSE (Work) 299. The right to engage in the common occupations of life is a fundamental right that is protected under the Due Process Clause of the Fourteenth Amendment. 300. SORA 2011 substantially interferes with the plaintiffs’ ability to engage in the common occupations of life. 301. SORA 2011 creates a wholesale barrier to employment. That barrier is not based on the plaintiffs’ fitness or capacity to work in the jobs from which they have been excluded. 302. SORA 2011 does not provide for any individualized consideration before restricting the plaintiffs’ ability to engage in the common occupations of life. 303. SORA 2011 violates the plaintiffs’ fundamental right to engage in the common occupations of life because it is not narrowly tailored to serve a compelling state interest.
COUNT IV: VIOLATION OF THE DUE PROCESS CLAUSE (Children) 304. The right to direct the education and upbringing of children is a fundamental right that
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is protected by the Due Process Clause of the Fourteenth Amendment. 305. SORA 2011 substantially interferes with the plaintiffs’ ability to direct the education
and upbringing of their children. 306. SORA 2011 does not provide for any individualized consideration before restricting the
plaintiffs’ right to direct the education and upbringing of children. 307. SORA 2011 violates the plaintiffs’ fundamental right to direct the education and
upbringing of children because it is not narrowly tailored to serve a compelling state interest. COUNT V: VIOLATION OF THE FIRST AMENDMENT
308. The First Amendment prohibits abridgement of the freedom of speech. The Fourteenth Amendment incorporates the First Amendment against the states.
309. SORA 2011 requires the plaintiffs to report information about their on-line accounts and activity to law enforcement, which substantially interferes with access to the Internet as a forum for speech and eliminates the plaintiffs’ opportunities for anonymous on-line speech.
310. SORA 2011’s requirements to report information about on-line accounts and activity is invalid under the First Amendment both on its face and as applied because it is not narrowly tailored to serve a compelling state interest and because it prohibits a substantial amount of protected speech.
COUNT VI: VIOLATION OF THE DUE PROCESS CLAUSE (Retroactivity) 311. The Due Process Clause of the Fourteenth Amendment imposes limits on retroactive legislation that is harsh or oppressive or that violates principles of fundamental fairness.
Claim of John Doe #1 312. John Doe #1 pled guilty to the offense of kidnapping in 1990. There was no sexual element to his crime, and at the time he pled guilty, Michigan had no sex offender registration.
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Mr. Doe #1 is now subject to lifetime sex offender registration. 313. Retroactively imposing SORA 2011 on Mr. Doe #1 violates the Due Process Clause of
the Fourteenth Amendment to the United States Constitution. Claim of John Doe #2
314. John Doe #2 pled guilty in 1997 under the Holmes Youthful Trainee Act based on a promise that, upon completion of probation, his case would be dismissed and his records would be sealed. He successfully completed probation and his case was dismissed. Nevertheless, Mr. Doe #2 is subject to lifetime registration under SORA 2011.
315. Retroactively imposing SORA 2011 on Mr. Doe #2 violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Claims of John Does #3 and #4 and Mary Doe 316. Prior to the enactment of SORA 2011, the plaintiffs were required to register for 25 years if living in Michigan. 317. SORA 2011 has been applied retroactively to extend the plaintiffs’ registration periods from 25 years to life without any individualized showing that such an extension is warranted. 318. Retroactively extending the plaintiffs’ registration periods violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
COUNT VII: VIOLATION THE DUE PROCESS CLAUSE (Vagueness, Impossibility and Strict Liability)
319. The Due Process Clause of the Fourteenth Amendment prohibits states from enforcing laws that are unconstitutionally vague. As a matter of due process, statutory requirements must be written with sufficient specificity that persons of ordinary intelligence need not guess at their meaning and will not differ as to their application.
320. SORA 2011 contains provisions that are invalid under the vagueness doctrine because
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those provisions fail to provide a person of ordinary intelligence fair notice of what is required and what is prohibited under the statute, making it impossible for the plaintiffs to conform their conduct to the statutory requirements, and making it likely that the statute will be enforced in different ways in different places or against different people.
321. The Due Process Clause of the Fourteenth Amendment prohibits states from enforcing laws with which it is impossible to comply. SORA 2011 contains provisions with which compliance is impossible.
322. The Due Process Clause also limits the use of strict liability in the criminal law. SORA 2011 contains provisions that impose strict liability in violation of due process.
323. The parts of SORA 2011 that are void for vagueness, or are impossible to comply with, or wrongly impose strict liability include but are not limited to:
a. the prohibition on working within a student safety zone, M.C.L. § 28.733-734; b. the prohibition on loitering within a student safety zone, M.C.L. § 28.733-734; c. the prohibition on residing within a student safety zone, M.C.L. § 28.733 & 735; d. the requirement to immediately report changes in personal data, M.C.L. § 28.725; e. the requirement to report educational information, M.C.L. § 28.724a; and f. the requirement to maintain a driver’s license or state personal identification card
with a current address. M.C.L. § 28.725a(7). COUNT VIII: VIOLATION OF THE HEADLEE AMENDMENT
324. The Headlee Amendment to the Michigan Constitution prohibits the state legislature from requiring local governments to increase their level of participation in a state program unless the state fully funds any necessary increased costs. Mich. Const. Art. 9, § 29.
325. The State Disbursements to Local Units of Government Act, M.C.L. § 21.231 et seq., which implements the Headlee Amendment, requires that the state legislature “appropriate an amount sufficient to make disbursements to each local unit of government for the necessary cost of each state requirement.” M.C.L. § 21. 235(1).
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326. As Michigan taxpayers, the plaintiffs have standing to bring a Headlee claim. Mich. Const. Art. 9, § 32.
327. SORA 2011 imposes increased requirements on local law enforcement agencies for the collection, maintenance, and reporting of data that the State of Michigan uses for its sex offender registry.
328. SORA 2011 also imposes increased requirements on local law enforcement agencies for the enforcement of SORA 2011.
329. Upon information and belief, the increased and unreimbursed costs borne by local law enforcement agencies under SORA 2011 substantially exceed $300 per local government. See M.C.L. § 21.232(4) (costs below $300 are considered de minimus).
330. These increased requirements are a “new activity or service or an increase in the level of any activity or service beyond that required by existing law,” within the meaning of the Headlee Amendment.
331. The State of Michigan has failed to make or disburse a state appropriation to local governments that is sufficient to cover the necessary increased costs imposed on local governments under SORA 2011.
332. SORA 2011 violates the Michigan Constitution, Art. 9, § 29 and the State Disbursements to Local Units of Government Act because SORA 2011 requires new activities or services, as well as an increase in the level of existing activities or services beyond that required by existing law, without sufficiently funding the necessary increased costs imposed on local governments.
Lack of Legal Remedy 333. The plaintiffs’ harm is ongoing, and cannot be alleviated except by injunctive relief.
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334. No other remedy is available at law.
Request For Relief
Wherefore, the plaintiffs request that this Court:
a. Issue a judgment, pursuant to 28 U.S.C. §§ 2201-2202, declaring that retroactive application of SORA 2011 violates the prohibition in the United States Constitution against ex post facto laws, and issue a preliminary and permanent injunction restraining the defendants from retroactively enforcing SORA 2011 against the plaintiffs without an individualized determination of dangerousness;
b. Issue a judgment, pursuant to 28 U.S.C. §§ 2201-2202, declaring that SORA 2011 unconstitutionally interferes with the plaintiffs’ fundamental rights to travel, to engage in the common occupations of life, to direct the education and upbringing of their children, and to engage in free speech, and issue a preliminary and permanent injunction restraining the defendants from enforcing against the plaintiffs those provisions of SORA 2011 that interfere with these rights;
c. Issue a judgment, pursuant to 28 U.S.C. §§ 2201-2202, declaring that applying SORA 2011 to John Does #1 and #2 violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and issue a preliminary and permanent injunction restraining the defendants from enforcing SORA 2011 against them;
d. Issue a judgment, pursuant to 28 U.S.C. §§ 2201-2202, declaring that retroactively extending the registration periods of John Does #3 – 4 and Mary Doe violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and issue a preliminary and permanent injunction restraining the defendants from retroactively extending their registration periods;
e. Issue a judgment, pursuant to 28 U.S.C. §§ 2201-2202, declaring that SORA 2011 is void under the Due Process Clause of the Fourteenth Amendment due to vagueness, impossibility, and wrongful imposition of strict liability, and issue a preliminary and permanent injunction restraining the defendants from enforcing against the plaintiffs those provisions of SORA 2011 that are unconstitutional;
f. Issue a judgment, pursuant to 28 U.S.C. § 2201-2202, declaring that SORA 2011 violates Michigan’s Headlee Amendment, Mich. Const. art. 9, § 29; and issue a preliminary and permanent injunction restraining the defendants from enforcing SORA 2011 until such time as the legislature appropriates funds sufficient to cover the necessary increased costs to local governments;
g. Award the plaintiffs their costs and attorneys’ fees pursuant to 42 U.S.C. § 1988 and Mich. Const. Art. 9, § 32; and
h. Grant such other relief as the Court finds just and proper.
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Respectfully submitted,

s/ Miriam Aukerman American Civil Liberties Union
Fund of Michigan Attorney for Plaintiffs 89 Ionia Avenue NW Grand Rapids, MI 49503 (616) 301-0930 maukerman@aclumich.org (P63165)
s/ Michael Steinberg s/ Kary Moss American Civil Liberties Union
Fund of Michigan Attorneys for Plaintiffs 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org (P43085) kmoss@aclumich.org (P49759)

s/ Paul D. Reingold Michigan Clinical Law Program Attorneys for Plaintiffs 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109 (734) 763-4319 pdr@umich.edu (P27594)
s/ William Swor Attorney for Plaintiffs 645 Griswold Street, Ste. 3060 Detroit, MI 48226 (313) 967-0200 wwswor@wwnet.net (P21215)
Dated: March 16, 2012

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Exhibit 1 2 3 4 5 6 7 8 9 10 11 12
13

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
INDEX OF EXHIBITS Description Obligations, Disabilities, and Restraints Imposed by SORA 2011 Declaration of John Doe #1 Declaration of John Doe #2 Declaration of John Doe #3 Declaration of John Doe #4 Declaration of Mary Doe Declaration of I.G. Declaration of Dr. James J. Prescott, J.D., Ph.D., on SORA Effects Declaration of Dr. Jill Levenson, Ph.D., on SORA Studies and Effects Declaration of Dr. Janet Fay-Dumaine, Psy. D., on the Plaintiffs’ Risk Level Declaration of Peter Wagner, J.D., on the Impact of Exclusion Zones Declaration of Anne Yantus, J.D., on the Impact of Registration on Plea Bargaining Texas Association of Counties Report on Costs to Local Governments of Implementing the Adam Walsh Act

50

 
 2:12-cv-11194-RHC-DRG Doc # 1-1 Filed 03/16/12 Pg 1 of 2 Pg ID 51

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

______________________________________________________________________________

JOHN DOES #1-4 and MARY DOE,
Plaintiffs, v.

File No. 2:11-cvHon.

RICHARD SNYDER, Governor of the State of Michigan, and COL. KRISTE ETUE, Director of the Michigan State Police, in their official capacities,

Mag. Judge

Defendants. ______________________________________________________________________________

Exhibit 1 2 3 4 5 6 7 8

INDEX OF EXHIBITS TO THE COMPLAINT Description Obligations, Disabilities, and Restraints Imposed by SORA 2011 Declaration of John Doe #1 Declaration of John Doe #2 Declaration of John Doe #3 Declaration of John Doe #4 Declaration of Mary Doe Declaration of I.G. Declaration of Dr. James J. Prescott, J.D., Ph.D., on SORA Effects; with Attachment A: Consequences Triggered by Michigan Sex Offender Registration, A National Sample; and Attachment B: Curriculum Vitae

9

Declaration of Dr. Jill Levenson, Ph.D., on SORA Studies and Effects;

with Attachment A: Curriculum Vitae

10

Declaration of Dr. Janet Fay-Dumaine, Psy. D., on the Plaintiffs’ Risk Level;

1

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with Attachment A: Plaintiffs’ Static 99R Scores, and Attachment B: Curriculum Vitae

11

Declaration of Peter Wagner, J.D., on the Impact of Exclusion Zones;

with Attachment A: Curriculum Vitae

12

Declaration of Anne Yantus, J.D., on the Impact of Registration on Plea

Bargaining

13

Texas Association of Counties Report on Costs to Local Governments of

Implementing the Adam Walsh Act

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EXHIBIT 1 OBLIGATIONS, DISABILITIES, AND RESTRAINTS IMPOSED BY SORA 2011

2:12-cv-11194-RHC-DRG Doc # 1-2 Filed 03/16/12 Pg 2 of 15 Pg ID 54
Obligations, Disabilities, and Restraints Imposed by Michigan’s
Sex Offender Registration Act1
Table of Contents
1.	   Defined Terms ......................................................................................................................... 3	   2.	   Requirement to Provide Personal Information ........................................................................ 3	   3.	   Public Disclosure of Personal Information and Labeling by Tier Status................................. 5	   4.	   Restrictions on Residency........................................................................................................ 7	   5.	   Restrictions on Employment.................................................................................................... 7	   6.	   Requirement to Create Biometric and Appearance Information ............................................. 8	   7.	   Restrictions on “Loitering” ...................................................................................................... 8	   8.	   Restrictions on Travel .............................................................................................................. 8	   9.	   Restrictions on School Attendance .......................................................................................... 9	   10.	   Restrictions on Vehicle Use or Ownership ........................................................................... 10	   11.	   Restrictions on Internet Usage .............................................................................................. 10	   12.	   Requirements for Supervision by Law Enforcement ............................................................ 10	   13.	   Requirements for “Immediate” Reporting to Law Enforcement........................................... 11	   14.	   Financial Obligations ............................................................................................................ 12	   15.	   Affirmative Obligations to the Secretary of State ................................................................. 12	   16.	   Penalties for Failure to Comply............................................................................................. 13	  
1 This document lists only affirmative obligations, disabilities and restraints imposed directly by Michigan’s Sex Offender Registration and Notification Act, M.C.L. § 28.721 et.seq. It does not include other affirmative obligations, disabilities and restraints that are triggered by an individual’s status as a registrant, but that are contained in other Michigan laws and regulations, or in the laws and regulations of the federal government, other states, or local governments. Those restrictions are too extensive to be compiled here.
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1. Defined Terms
The following terms are used throughout the statute and are defined once here so that they need not be re-stated repeatedly below.
a. “Immediately Report” means report in person to the local registering authority within three business days.2
b. “Student Safety Zone” means the area that lies 1,000 feet or less from any building, facility, structure, or real property owned, leased or otherwise controlled by a school (meaning a public, private, denominational, or parochial school, offering developmental kindergarten, kindergarten, or any grade from 1 through 12) that is used to impart educational instruction or is used by students not more than 19 years of age for sports or other recreational activities.3
2. Requirement to Provide Personal Information
Registrants Must Provide:
a. Legal name and any aliases, nicknames, ethnic or tribal names, or other names by which the individual is or has been known.4
b. Social Security number and any Social Security numbers or alleged Social Security numbers previously used.5
c. Date of birth and any alleged dates of birth previously used.6 d. The address where the individual resides or will reside.7 e. The name and address of any place of temporary lodging used or to be used for more than
7 days.8 f. The name and address of each employer. 9 g. The name and address of any person who has agreed to hire or contract with the
individual for his or her services.10 h. The general areas where the individual works and the normal travel routes taken by the
individual in the course of his or her employment if the individual lacks a fixed employment location.11 i. The name and address of any school being attended.12
2 M.C.L. § 28.722(d)-(f). 3 M.C.L. § 28.733(f). 4 M.C.L. § 28.727(1)(a). 5 M.C.L. § 28.727(1)(b). 6 M.C.L. § 28.727(1)(c). 7 M.C.L. § 28.727(1)(d). 8 M.C.L. § 28.727(1)(e). 9 M.C.L. § 28.727(1)(f). 10 M.C.L. § 28.727(1)(f). 11 M.C.L. § 28.727(1)(f). 12 M.C.L. § 28.727(1)(g).
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j. The name and address of any school that has accepted the individual as a student that he or she plans to attend.13
k. All telephone numbers registered to the individual.14 l. All telephone numbers routinely used by the individual.15 m. All electronic email addresses assigned to the individual.16 n. All electronic email addresses routinely used by the individual.17 o. All instant message addresses assigned to the individual.18 p. All instant message addresses routinely used by the individual.19 q. All login names used by the individual when using any electronic mail address or instant
messaging system.20 r. Any other identifiers used by the individual when using any electronic mail address or
instant messaging system.21 s. The license plate number, registration number, and description of any motor vehicle
owned by the individual.22 t. The license plate number, registration number, and description of any motor vehicle
regularly used by the individual.23 u. The location at which any motor vehicle owned or regularly used by the individual is
habitually stored or kept.24 v. The license plate number, registration number, and description of any aircraft owned by
the individual.25 w. The license plate number, registration number, and description of any aircraft regularly
used by the individual.26 x. The location at which any aircraft owned or regularly used by the individual is habitually
stored or kept.27 y. The license plate number, registration number, and description of any vessel owned by
the individual.28 z. The license plate number, registration number, and description of any vessel regularly
used by the individual.29
13 M.C.L. § 28.727(1)(g). 14 M.C.L. § 28.727(1)(h). 15 M.C.L. § 28.727(1)(h). 16 M.C.L. § 28.727(1)(i). 17 M.C.L. § 28.727(1)(i). 18 M.C.L. § 28.727(1)(i). 19 M.C.L. § 28.727(1)(i). 20 M.C.L. § 28.727(1)(i). 21 M.C.L. § 28.727(1)(i). 22 M.C.L. § 28.727(1)(j). 23 M.C.L. § 28.727(1)(j). 24 M.C.L. § 28.727(1)(j). 25 M.C.L. § 28.727(1)(j). 26 M.C.L. § 28.727(1)(j). 27 M.C.L. § 28.727(1)(j). 28 M.C.L. § 28.727(1)(j). 29 M.C.L. § 28.727(1)(j).
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aa. The location at which any vessel owned or regularly used by the individual is habitually stored or kept.30
bb. Driver’s license number or state personal identification card number.31 cc. The individual’s passport and other immigration documents.32 dd. Occupational and professional licensing information, including any license that
authorizes the individual to engage in any occupation, profession, trade, or business.33 ee. Written documentation of employment status, contractual relationship, volunteer status,
or student status when individual enrolls or discontinues enrollment at an institution of higher education.34 ff. A summary of convictions for listed offenses recorded by the registering authority. That summary includes all listed offenses, regardless of when the conviction occurred, including where the offense occurred and the original charge if the conviction was for a lesser offense.35 gg. A complete physical description of the individual recorded by the registering authority.36
3. Public Disclosure of Personal Information and Labeling by Tier Status
a. The public registry indicates for each individual to which tier the individual has been assigned.37
b. Information made available on a public internet website, searchable by name, village, city, township, county, zip code, and geographical area, includes:38 i. Legal name.39 ii. Aliases.40 iii. Nicknames.41 iv. Ethnic or tribal names.42 v. Other names by which the individual is or has been known.43 vi. Date of birth.44 vii. Address of residence.45 viii. Address of employment.46
30 M.C.L. § 28.727(1)(j). 31 M.C.L. § 28.727(1)(k). 32 M.C.L. § 28.727(1)(l). 33 M.C.L. § 28.727(1)(m). 34 M.C.L. §§ 28.727(1)(r), 28.724a(5). 35 M.C.L. § 28.727(1)(n). 36 M.C.L. § 28.727(1)(o). 37 M.C.L. § 28.728(2)(l). 38 M.C.L. § 28.728(7). 39 M.C.L. § 28.728(2)(a). 40 M.C.L. § 28.728(2)(a). 41 M.C.L. § 28.728(2)(a). 42 M.C.L. § 28.728(2)(a). 43 M.C.L. § 28.728(2)(a). 44 M.C.L. § 28.728(2)(b). 45 M.C.L. § 28.728(2)(c).
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ix. x. xi. xii.
xiii. xiv. xv. xvi. xvii. xviii. xix. xx.
xxi.

Address of school being attended.47 Address of school that has accepted individual that he or she plans to attend.48 License plate number or registration number of any motor vehicle owned.49
License plate number or registration number of any motor vehicle regularly operated.50 License plate number or registration number of any aircraft owned.51 License plate number or registration number of any aircraft regularly operated.52 License plate number or registration number of any vessel owned.53 License plate number or registration number of any vessel regularly operated.54 Brief summary of convictions for listed offenses.55 Complete physical description of the individual.56 Photograph of the individual.57
The text of the provision of the law that defines the criminal offense for which the individual is registered.58 Registration status.59

c. In addition to the public website, access to the above information is also available for
inspection by any member of the public during regular business hours at a department post, local law enforcement agency, or sheriff’s department.60
d. Any member of the public may subscribe to electronic notifications for any initial
registrations and changes in registration within a designated area or geographic radius designated by the subscribing member of the public.61

46 M.C.L. § 28.728(2)(d). 47 M.C.L. § 28.728(2)(e). 48 M.C.L. § 28.728(2)(e). 49 M.C.L. § 28.728(2)(f). 50 M.C.L. § 28.728(2)(f). 51 M.C.L. § 28.728(2)(f). 52 M.C.L. § 28.728(2)(f). 53 M.C.L. § 28.728(2)(f). 54 M.C.L. § 28.728(2)(f). 55 M.C.L. § 28.728(2)(g). 56 M.C.L. § 28.728(2)(h). 57 M.C.L. § 28.728(2)(i). 58 M.C.L. § 28.728(2)(j). 59 M.C.L. § 28.728(2)(k). 60 M.C.L. § 28.730(2). 61 M.C.L. § 28.730(3).
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4. Restrictions on Residency
Registrants Must:
a. Not reside within a “student safety zone.”62 This restriction includes an affirmative obligation to determine, prior to changing residences, whether a proposed residence is located within an exclusion zone.
b. Register the address where the individual resides or will reside.63 c. Immediately report when the individual changes or vacates his or her residence or
domicile.64 d. Immediately report when the individual intends to temporarily reside at any place other
than his or her residence for more than 7 days.65 e. Immediately report before the individual changes his or her domicile or residence to
another state.66 The new state and the new address, if known, must be provided at the time of reporting.67 (The address where the individual resides is made available on the public internet website.)68
5. Restrictions on Employment
Registrants Must:
a. Not work within a “student safety zone.”69 This restriction includes an affirmative obligation to determine, prior to accepting employment, whether a proposed employment opportunity is located within an exclusion zone.
b. Register the name and address of each employer or any person who has agreed to hire or contract with the individual for his or her services.70
c. Register the general areas where the individual works and the normal travel routes taken by the individual in the course of his or her employment if the individual lacks a fixed employment location.71 (The address where the individual works is made available on the public internet website.)72
d. Immediately report in person to the local registering authority when the individual changes his or her place of employment.73
62 M.C.L. §§ 28.735(1), 28.733, 28.722(p). See exceptions in M.C.L. §§ 28.735(3); 28.736. 63 M.C.L. § 28.727(1)(d). 64 M.C.L. § 28.725(1)(a). 65 M.C.L. § 28.725(1)(e). 66 M.C.L. § 28.725(6). 67 M.C.L. § 28.725(6). 68 M.C.L. § 28.728(2)(c). 69 M.C.L. §§ 28.734(1)(a), 28.733. See exceptions in M.C.L. §§ 28.734(3); 28.736. 70 M.C.L. § 28.727(1)(f). 71 M.C.L. § 28.727(1)(f). 72 M.C.L. § 28.728(2)(d). 73 M.C.L. § 28.725(1)(b).
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e. Immediately report in person to the local registering authority when the individual discontinues employment.74
6. Requirement to Create Biometric and Appearance Information
Registrants Must:
a. Provide fingerprints to the registering authority.75 b. Provide palm prints to the registering authority.76 c. Have a photograph taken by the Secretary of State, which shall make the photograph
available to the Michigan State Police. 77 d. Have a new photograph taken whenever the license or identification card is renewed.78 e. Immediately have another photograph taken if the photograph on file does not match the
individual’s appearance sufficiently to properly identify him or her from the photograph.79
7. Restrictions on “Loitering”
a. Must not 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 within a “student safety zone.”80
8. Restrictions on Travel
Registrants Must:
a. Organize any travel so that the individual is still able to comply with requirements for regular in-person reporting (e.g., Tier III registrants must not travel over periods from January1-15, April 1-15, July 1-15, and October 1-15).81
b. Immediately report when the individual intends to temporarily reside at any place other than his or her residence for more than 7 days.82
c. Report in person to the local registering authority at least 21 days before he or she travels to another country for more than 7 days.83
74 M.C.L. § 28.725(1)(b). 75 M.C.L. § 28.727(1)(q). 76 M.C.L. § 28.727(1)(q). 77 M.C.L. §§ 28.725a(8), 28.727(1)(p). 78 M.C.L. §§ 28.725a(8), 28.727(1)(p). 79 M.C.L. § 28.725a(5). 80 M.C.L. §§ 28.734(1)(b), 28.733. 81 M.C.L. § 28.725a(3). 82 M.C.L. § 28.725(1)(e). 83 M.C.L. § 28.725(7).
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d. Report in person to the local registering authority at least 21 days before he or she changes his or her domicile to another country.84
e. The new country and, if known, the new address must be reported at the time of reporting.85
9. Restrictions on School Attendance
a. Michigan Resident Registrants Must: i. Immediately report where his or her new residence or domicile is located if the individual enrolls as a student.86 ii. Immediately report where his or her new residence or domicile is located if the individual discontinues enrollment as a student.87
iii. Pay the $50.00 registration fee upon reporting.88 iv. Present to the local registering authority written documentation of employment
status, contractual relationship, volunteer status, or student status. Documentation may include, a W-2 form, pay stub, written statement by an employer, a contract, or a student identification card or transcript.89 b. Michigan Non-Residents Registrants Must: i. Immediately report in person to the campus registering authority if the individual enrolls as a student.90 ii. Immediately report in person to the campus registering authority if the individual discontinues enrollment as a student.91 iii. Pay the $50.00 registration fee upon reporting.92 iv. Present to the local registering authority written documentation of employment status, contractual relationship, volunteer status, or student status. Documentation may include, a W-2 form, pay stub, written statement by an employer, a contract, or a student identification card or transcript.93 c. School information is made available to the public on the public internet website.94
84 M.C.L. § 28.725(7). 85 M.C.L. § 28.725(7). 86 M.C.L. §§ 28.724a(2), 28.725(1)(c), 28.724a(3)(b), 28.722(g). 87 M.C.L. §§ 28.724a(2), 28.725(1)(c), 28.724a(3)(b), 28.722(g). 88 M.C.L. § 28.724a(5). 89 M.C.L. § 28.724a(5). 90 M.C.L. §§ 28.724a(1)(a), 28.724a(3)(b), 28.722(g). 91 M.C.L. §§ 28.724a(1)(a), 28.724a(3)(b), 28.722(g). 92 M.C.L. § 28.724a(5). 93 M.C.L. § 28.724a(5). 94 M.C.L. § 28.728(2)(e).
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10. Restrictions on Vehicle Use or Ownership
Registrant Must Immediately Report When:
a. He or she purchases any vehicle.95 b. He or she discontinues ownership of any vehicle. c. He or she begins to regularly operate any vehicle.96 d. He or she discontinues regular operation of any vehicle.97 (Vehicle information is made
available to the public on the public internet website.)98
11. Restrictions on Internet Usage
Registrants Must Immediately Report In Person When The Individual Establishes:
a. Any electronic mail address.99 b. Any instant message address.100 c. Any other designations used in internet communications or postings.101
12. Requirements for Supervision by Law Enforcement
a. Registrants must, in addition to other reporting requirements, report in person to the local registering authority: i. Tier I: Once per year, between January 1 and January 15, for 15 years.102 ii. Tier II: Twice per year, between January 1 and January 15 and again between July 1 and July 15, for 25 years.103 iii. Tier III: Four times per year, between January 1 and January 15, April 1 and April 15, July 1 and July 15, and October 1 and October 15, for life.104
b. Registrants must, at the above regularly scheduled visits: i. Verify domicile or residence.105 ii. Verify all registration information.106
95 M.C.L. § 28.725(1)(g). 96 M.C.L. § 28.725(1)(g). 97 M.C.L. § 28.725(1)(g). 98 M.C.L. § 28.728(2)(f). 99 M.C.L. § 28.725(1)(f). 100 M.C.L. § 28.725(1)(f). 101 M.C.L. § 28.725(1)(f). 102 M.C.L. §§ 28.725a(3)(a), 28.725(10). 103 M.C.L. §§ 28.725a(3)(b), 28.725(11). 104 M.C.L. §§ 28.725a(3)(c), 28.725(12). 105 M.C.L. § 28.725a(3). 106 M.C.L. § 28.725a(4).
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iii. Provide whatever documentation is required by the registering authority to prove residency or domicile, including, but not limited to driver’s license, state personal identification card, voter registry card, utility bill, or other bill.107
iv. Provide whatever documentation is required by the registering authority to prove employment status, contractual relationship, volunteer status, or student status, including but not limited to a W-2 form, pay stub or written statement by an employer, a contract, or a student identification card or student transcript.108
v. Immediately have another photograph taken if the photograph on file does not match the individual’s appearance sufficiently to properly identify him or her from the photograph.109
13. Requirements for “Immediate” Reporting to Law Enforcement
Registrants Must Immediately Report In Person To The Local Registering Authority:
a. When he or she changes or vacates his or her residence or domicile.110 b. When he or she intends to temporarily reside at any place other than his or her residence
for more than 7 days.111 c. Before the individual changes his or her domicile or residence to another state.112 The
new state and, if known, the new address must be reported at the time of reporting.113 f. When the individual changes his or her name114 or place of employment.115 g. When he or she discontinues employment.116 h. When he or she purchases any vehicle.117 i. When he or she discontinues ownership of any vehicle. j. When he or she begins to regularly operate any vehicle.118 d. When he or she discontinues regular operation of any vehicle.119 e. When he or she establishes any electronic mail address.120 f. When he or she establishes any instant message address.121 g. When he or she establishes any other designations used in internet communications or
postings.122
107 M.C.L. § 28.725a(7). 108 M.C.L. § 28.724a(5). 109 M.C.L. § 28.725a(5). 110 M.C.L. § 28.725(1)(a). 111 M.C.L. § 28.725(1)(e). 112 M.C.L. § 28.725(6). 113 M.C.L. § 28.725(6). 114 M.C.L. § 28.725(1)(d). 115 M.C.L. § 28.725(1)(b). 116 M.C.L. § 28.725(1)(b). 117 M.C.L. § 28.725(1)(g). 118 M.C.L. § 28.725(1)(g). 119 M.C.L. § 28.725(1)(g). 120 M.C.L. § 28.725(1)(f). 121 M.C.L. § 28.725(1)(f).
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h. Where his or her new residence or domicile is located if the individual enrolls as a student.123
i. Where his or her new residence or domicile is located if the individual discontinues enrollment as a student.124
j. Where his or her new residence or domicile is located if, as part of his or her course of studies, the individual is present at any other location in Michigan or throughout the United States.125
k. Where his or her new residence or domicile is located if the individual discontinues his or her studies at any other location in Michigan or throughout the United States.126
l. If he or she enrolls as a student (to campus registering authority).127 m. If he or she discontinues enrollment as a student (to campus registering authority).128 n. If, as part of his or her course of studies, the individual is present at any other location in
Michigan or throughout the United States (to campus registering authority).129 o. If the individual discontinues his or her studies at any other location in Michigan or
throughout the United States (to campus registering authority).130 p. If the photograph on file does not match the appearance sufficiently to properly identify
him or her from the photograph, so that a new photograph may be taken.131 k. If upon release from incarceration his or her appearance has changed from the date of a
photograph taken for a driver’s license (in which case a new digitized photo must be taken).132
14. Financial Obligations
a. Must pay a one-time $50.00 registration fee.133
15. Affirmative Obligations to the Secretary of State
Registrants Must:
a. Maintain a valid Michigan driver’s license, or an official state issued personal identification card with the individual’s current address.134
122 M.C.L. § 28.725(1)(f). 123 M.C.L. §§ 28.724a(2), 28.725(1)(c), 28.724a(3)(b), 28.722(g). 124 M.C.L. §§ 28.724a(2), 28.725(1)(c), 28.724a(3)(b), 28.722(g). 125 M.C.L. §§ 28.724a(2), 28.724a(3)(b), 28.722(g). 126 M.C.L. §§ 28.724a(2), 28.724a(3)(b), 28.722(g). 127 M.C.L. §§ 28.724a(1)(a), 28.724a(3)(b), 28.722(g). 128 M.C.L. §§ 28.724a(1)(a), 28.724a(3)(b), 28.722(g). 129 M.C.L. §§ 28.724a(1)(b), 28.724a(3)(b), 28.722(g). 130 M.C.L. §§ 28.724a(1)(b), 28.724a(3)(b), 28.722(g). 131 M.C.L. § 28.725a(5). 132 M.C.L. § 28.725a(8). 133 M.C.L. §§ 28.725a(6), 28.727(1). 134 M.C.L. § 28.725a(7).
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b. Immediately report to the Secretary of State upon release from incarceration to have his or her digitized photograph taken if his or her appearance has changed from the date of a photograph taken for a driver’s license.135
16. Penalties for Failure to Comply
a. Willful violation of the Act is a felony punishable by:136 i. Up to 4 years imprisonment and/or a maximum fine of $2,000.00 for the first conviction of a violation of the registration act.137 ii. Up to 7 years imprisonment and/or a maximum fine of $5,000.00 for the second conviction of a violation of the registration act.138
iii. Up to 10 years imprisonment and/or a maximum fine of $10,000.00 for the third or greater conviction of a violation of the registration act.139
iv. Mandatory revocation of probation for any individual on probation.140 v. Mandatory revocation of youthful trainee status for any individual assigned to
youthful trainee status.141 vi. Mandatory rescission of parole for any individual released on parole.142
b. Failure to comply with any of the following is a misdemeanor punishable by imprisonment for up to 2 years and/or a maximum fine of $2,000.00:143 i. Maintain a valid Michigan driver’s license, or an official state issued personal identification card with the individual’s current address.144 ii. Immediately report to the Secretary of State upon release from incarceration to have his or her digitized photograph taken if his or her appearance has changed from the date of a photograph taken for a driver’s license.145 iii. Tier I Individuals: Report once per year, between January 1 and January 15, for 15 years, and:146 1. Verify domicile or residence.147 2. Verify all registration information.148 3. Verify written documentation of employment status, contractual relationship, volunteer status, or student status.149
135 M.C.L. § 28.725a(8). 136 M.C.L. § 28.729(1). 137 M.C.L. § 28.729(1)(a). 138 M.C.L. § 28.729(1)(b). 139 M.C.L. § 28.729(1)(c). 140 M.C.L. § 28.729(5). 141 M.C.L. § 28.729(6). 142 M.C.L. § 28.729(7). 143 M.C.L. § 28.729(2). 144 M.C.L. §§ 28.729(2), 28.725a(7). 145 M.C.L. §§ 28.729(2), 28.725a(8). 146 M.C.L. §§ 28.729(2), 28.725a(3)(a), 28.725(10). 147 M.C.L. §§ 28.729(2), 28.725a(3). 148 M.C.L. §§ 28.729(2), 28.725a(4).
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4. Immediately have another photograph taken if the photograph on file does not match the appearance sufficiently to properly identify him or her from the photograph.150
iv. Tier II Individuals: Report twice per year, between January 1 and January 15 and again between July 1 and July 15, for 25 years, and:151 1. Verify domicile or residence.152 2. Verify all registration information.153 3. Verify written documentation of employment status, contractual relationship, volunteer status, or student status.154 4. Immediately have another photograph taken if the photograph on file does not match the appearance sufficiently to properly identify him or her from the photograph.155
v. Tier III Individuals: Report four times per year, between January 1 and January 15, April 1 and April 15, July 1 and July 15, and October 1 and October 15, for life, and:156 1. Verify domicile or residence.157 2. Verify all registration information,158 3. Verify written documentation of employment status, contractual relationship, volunteer status, or student status,159 and 4. Immediately have another photograph taken if the photograph on file does not match the appearance sufficiently to properly identify him or her from the photograph.160
c. Willful failure to sign a registration and notice is a misdemeanor punishable by imprisonment for up to 93 days and/or a maximum fine of $1,000.00.161
d. Willful refusal or failure to pay the $50.00 registration fee within 90 days is a misdemeanor punishable by imprisonment for up to 90 days.162
e. Working within a “student safety zone”163 is a:
149 M.C.L. §§ 28.729(2), 28.725a(5), 28.724a. 150 M.C.L. §§ 28.729(2), 28.725a(5). 151 M.C.L. §§ 28.729(2), 28.725a(3)(b), 28.725(11). 152 M.C.L. §§ 28.729(2), 28.725a(3). 153 M.C.L. §§ 28.729(2), 28.725a(4). 154 M.C.L. §§ 28.729(2), 28.725a(5), 28.724a. 155 M.C.L. §§ 28.729(2), 28.725a(5). 156 M.C.L. §§ 28.729(2), 28.725a(3)(c), 28.725(12). 157 M.C.L. §§ 28.729(2), 28.725a(3). 158 M.C.L. §§ 28.729(2), 28.725a(4). 159 M.C.L. §§ 28.729(2), 28.725a(5), 28.724a. 160 M.C.L. §§ 28.729(2), 28.725a(5). 161 M.C.L. § 28.729(3). 162 M.C.L. § 28.729(4). 163 M.C.L. §§ 28.734(1)(a), 28.733.
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i. Misdemeanor punishable by up to 1 year imprisonment and/or a maximum fine of $1,000.00 for the first violation.164
ii. Felony punishable by up to 2 years imprisonment and/or a maximum fine of $2,000.00 for anything greater than one violation.165
d. Remaining for a period of time and under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors (i.e., “loitering”) within a “student safety zone”166 is a: i. Misdemeanor punishable by up to 1 year imprisonment and/or a maximum fine of $1,000.00 for the first violation.167 ii. Felony punishable by up to 2 years imprisonment and/or a maximum fine of $2,000.00 for anything greater than one violation.168
e. Residing within a “student safety zone”169 is a: i. Misdemeanor punishable by up to 1 year imprisonment and/or a maximum fine of $1,000.00 for the first violation.170 ii. Felony punishable by up to 2 years imprisonment and/or a maximum fine of $2,000.00 for anything greater than one violation.171
164 M.C.L. § 28.734(2)(a). 165 M.C.L. § 28.734(2)(b). 166 M.C.L. §§ 28.734(1)(b), 28.733. 167 M.C.L. § 28.734(2)(a). 168 M.C.L. § 28.734(2)(b). 169 M.C.L. §§ 28.735(1), 28.733, 28.722(p). 170 M.C.L. § 28.735(2)(a). 171 M.C.L. § 28.735(2)(b).
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EXHIBIT 2 DECLARATION OF JOHN DOE #1

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EXHIBIT 3 DECLARATION OF JOHN DOE #2

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EXHIBIT 5 DECLARATION OF JOHN DOE #4

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EXHIBIT 6 DECLARATION OF MARY DOE

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EXHIBIT 7 DECLARATION OF I.G.

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EXHIBIT 8 DECLARATION OF DR. JAMES J. PRESCOTT, J.D., PH.D., ON SORA EFFECTS

2:12-cv-11194-RHC-DRG Doc # 1-9 Filed 03/16/12 Pg 2 of 28 Pg ID 81
John Doe #1, et al., v. Richard Snyder, et al.
EXPERT REPORT/DECLARATION OF JAMES J. PRESCOTT, J.D., PH.D.
I, James J. Prescott, J.D., Ph.D., state under penalty of perjury as follows:
1. Background, Education, and Qualifications
I am a professor of law at the University of Michigan Law School in Ann Arbor, Michigan. In 2006, I received my Ph.D. in Economics from the Massachusetts Institute of Technology. I earned my J.D. magna cum laude from Harvard Law School in 2002, and my B.A. in Public Policy and Economics with honors and distinction from Stanford University in 1996.
I teach and write in the areas of criminal law and criminal sentencing. Much of my recent work (which is primarily empirical) centers on the consequences of sex offender post-release laws. I focus on the effects that sex offender registration and community notification laws have on sex offense rates. The attached c.v. provides further details, including links to relevant papers and a list of institutions and conferences at which I have presented my research on measuring the effects of sex offender notification laws.
At present, I have two ongoing projects that attempt to further refine our collective understanding of the consequences of registration and community notification on the number and nature of sex offenses. (Note: I use the term “registration” to refer to laws that require the private registration of released sex offenders with the police or other local authorities, and the term “notification” to refer to laws that mandate that registration information be made public—i.e., public registries.) The first project examines whether registration and, particularly, notification laws (again, public registries) have any effect on the location of sex offenses (joint work with Amanda Agan, an economics graduate student at the University of Chicago). The second project studies the consequences of registration and notification laws using public health measures of sexual activity rather than reported crime levels (joint work with Jonathan Klick of the University of Pennsylvania Law School).
2. The Effects of Sex Offender Registration and Notification Laws
More than three years ago, I began a series of large-scale empirical projects designed to identify and measure the consequences of sex offender post-release laws, including sex offender registration and notification laws. Last year, I published an article with Jonah Rockoff of Columbia University that offers comprehensive evidence on the relationship between sex offender notification laws (i.e., public registries) and the frequency and nature of sex offenses.1
1 See J.J. Prescott & Jonah E. Rockoff, Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?, 54 J.L.&Econ. 161 (2011), available at http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1100663.
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This peer-reviewed study, which analyzed data from 15 states (including Michigan) over approximately ten years, provides compelling evidence that rather than reducing recidivism, notification laws may well have increased (and almost certainly have not reduced) the frequency of sex crimes committed by convicted sex offenders.
I describe this research in three parts. First, I report the empirical results of my research with Rockoff and explain their implications for evaluating Michigan’s sex offender registration and notification laws. Second, I describe our study’s data and empirical methodology. Third, I explain how and why public registries, although intended to make people safer, may actually put people at greater risk.
A. The Recidivism Consequences of Notification (i.e., Public Registration)
Registration and notification laws have the potential to influence sex-offending behavior in two primary ways. First, potential first-time sex offenders (or non-registered offenders more generally) could become less likely to commit offenses because they fear having registration and notification laws applied to them in the future if they are caught and convicted. We refer to this behavioral response as “deterrence.” Second, convicted sex offenders who are presently subject to registration and notification could become less likely to commit offenses because these laws make doing so more difficult—by increasing the difficulty of finding a victim or the chance of detection, or by mitigating the risk factors that cause individuals to return to crime. We term this behavioral response “recidivism reduction.”
While both deterrence and recidivism reduction can influence the overall frequency of sex crimes, proponents of sex offender registration and notification laws have always (and have almost exclusively) justified them on the grounds that they can reduce recidivism. This makes sense: the goal of enabling potential victims to protect themselves by learning the identities and criminal histories of potential recidivists requires, by assumption and design, the collection and sharing of such information. By contrast, generally deterring potential offenders may be achieved in many potential ways (like increasing prison sentences).
With respect to reducing the recidivism of convicted sex offenders, the results of our empirical research do not support the use of notification (i.e., public registries). But our results do provide some support (with the caveats detailed below) for the use of private registries to help the police and other authorities monitor convicted offenders.
Private Registration: To begin with, we find no discernible deterrent effect of private registries. This is not surprising—in the 1990s, private registries allowed only the police or other state officials to learn of a conviction. As a result, there was little public shame (so long as the records remained confidential), and the burdens of complying with registry requirements were very low by comparison with today’s time-consuming, difficult, and expensive obligations. We do, however, find evidence that these private registries reduced recidivism, at least with respect to sex offenses committed against family members, friends, acquaintances, and neighbors (but not
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against strangers), suggesting that closer monitoring by the police provides some protection for easily identifiable targets.
Public Registration: With respect to notification, however, we observe quite the opposite pattern. The threat of becoming subjected to a notification regime—and the shame and collateral consequences that accompany being publicly identified as a sex criminal—had a measurable deterrent effect (i.e., reducing offenses by non-registrants). But, once we take into account the number of individuals subjected to public notification, we find that the more people a state subjects to notification, the higher the relative frequency of sex offenses in that state. These results are highly statistically significant: our estimates indicate that it is very unlikely that these laws are reducing recidivism by registrants, and that it is likely that these laws are actually increasing recidivism (that is, that the laws are causing positive harm).
Specifically, we find a 0.86% increase in the number of sex offenses per year for every additional registrant per 10,000 people in a notification state. Using the average registry size across our sample of states, this economically and statistically significant increase in recidivism by registrants more than offsets the estimated gains from the deterrence of crimes by potential or non-registered offenders. On balance, for states with average-sized registries, we calculate that notification laws lead to an additional 0.144 sex offenses per 10,000 people (relative to the number of offenses that would have occurred with only a private registration law in place). If Michigan were a “typical” jurisdiction in terms of the per capita number of offenders it chose to subject to notification, these findings would translate to between 100 and 200 additional sex offenses per year in the state.
Michigan, however, has one of the largest public sex offender registries in the country.2 At registry sizes like Michigan’s circa 2005 (well more than 30 registrants per 10,000 individuals in the state by any measure), notification-generated increases in recidivism dwarf deterrence gains, leading to sex offense rates that could be more than 10% higher than they would otherwise be. In fact, this estimate of the increase in the number of sex offenses resulting from notification is very conservative given the results of our study. (This is a conservative estimate because Michigan’s per capita registry size is such an outlier that extrapolation is risky.) Nevertheless, our study provides evidence that can be used to show, strikingly, that Michigan’s notification regime is very unlikely to be reducing recidivism; to the contrary, our research suggests it accounts for hundreds of additional sex offenses each year.
2 Estimates of the number of publicly registered offenders can vary. Two reputable sources, Family Watchdog (http://www.familywatchdog.us/OffenderCountByState.asp, visited on March 1, 2012) and the National Center for Missing & Exploited Children (http://www.missingkids.com/en_US/documents/sexoffender-map.pdf, visited on March 1, 2012) both report that Michigan has a per-capita registration rate far above the national average, somewhere between 35 and 50 registered offenders per 10,000 individuals in the state.
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We base these empirical conclusions on comparisons of sex offense frequencies over time and across states, carefully controlling for inherent geographic, economic, and social differences and trends over time. Changes in national mood would not generate these results; the study’s findings also cannot be accounted for by arguing that states with large registries are just different from other states. For one, we control for county-level demographics and income over time and for other crime rates (e.g., the frequency of non-sex crime generally as well as the frequency of assaults). Therefore, when public registries grow, we find that even relative to other kinds of crime, the number of sex offenses rises under notification. For another, even within a state, if the number of publicly registered offenders grows faster than average (relative to other states), the frequency of sex offenses also grows relatively faster than average.
In the final published paper, we also address and reject a number of other explanations for our empirical findings. We consider, among others, changes in victim reporting behavior, strain on police resources, and public fatigue.
We also find evidence in our study that notification does not, in fact, make it much more difficult for registered offenders to commit new crimes. This result is at odds with the underlying theory that publicly identifying past offenders will alert potential victims to the presence of “nearby” offenders and allow these potential victims to protect themselves (see part C below). Specifically, we find that notification laws generate similar increases in the frequencies of sex offenses against each type of victim—i.e., against family members, neighbors, acquaintances, and strangers. Therefore, even in a relative sense, it does not appear that neighbors and acquaintances have benefited from the enactment of notification laws.
Finally, although our research indicates that private registration laws appeared to reduce recidivism in the 1990s, care is necessary in extrapolating those results to the effects of present regimes re-imagined as private registries. Leaving aside the fact that registration information is now public in Michigan (and in all states for at least high-risk offenders), the procedures and requirements of registration in the 1990s were significantly less burdensome in time and money, and in terms of the difficulty of compliance, than they would be if a “private version” of the average public registry were used today.
B. Empirical Methodology for Identifying the Effects of Notification
Because the effects of these laws depend a great deal on how they are structured (see part C below), and because the states and the federal government passed these laws with no in-depth investigation of their likely consequences, my research with Rockoff on notification employed well-known federal crime data covering many states over many years to generate reliable evidence on both how these laws influence recidivism levels and, even if crime frequency remains unaffected, how these laws alter sex offender behavior more generally.
Our approach builds on the fact that notification laws are designed to reduce recidivism by making individuals who are located “near” potential recidivists (like neighbors, acquaintances,
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etc.) safer by providing any potential victim with supposedly useful identifying information about released offenders who might pose a threat. Therefore, if notification works as its proponents suggest, we would expect to see relatively fewer attacks against neighbors and acquaintances under a notification regime. To test this hypothesis, Rockoff and I made use of the federal government’s National Incident-Based Reporting System (NIBRS) data, the only high-quality, multi-state crime data with details about offender-victim relationships. (We discuss the NIBRS data in detail in Section 4 and the Appendix of our article, including many advantages and disadvantages of the NIBRS program and the steps we took to ensure the reliability of the data we used in our analysis.)
NIBRS is a relatively new data collection effort, with only a few states participating at the outset in the early 1990s. As registration and notification laws were enacted primarily in the 1990s, we selected the 15 states that were participating in NIBRS as of 1998: Colorado, Connecticut, Idaho, Iowa, Kentucky, Massachusetts, Michigan, Nebraska, North Dakota, Ohio, South Carolina, Texas, Utah, Vermont, and Virginia. This is a fairly representative group of states, both geographically and in terms of the evolution of their sex offender legislation. To enhance the reliability of our work, we limited our analysis to states that were part of NIBRS by 1998 to be sure that we had data for a significant period of time both before and after the states enacted their notification laws. We conducted our analysis using NIBRS data through 2005, giving us more than 10 years of data for some states and at least 7 years for all states.
Next, we characterized the content and timing of the registration and notification laws in each of these 15 states. We conducted painstaking legal analysis for more than a year to identify the precise times that statutes were enacted and when each became effective and operational. (Because NIBRS crime data is collected by month, we are able to make use of these precise legal details in our work.)
In coding these laws, we were careful to distinguish between private registries and notification (public registries) because they are meant to function in very different ways. We were also careful in how we described each notification law, as the content of these laws varies across states and over time. For example, early notification laws allowed the public merely to access paper registries; eventually, all notification laws required that sex offender data be posted to publicly accessible internet web-registries. Some states also enacted “active” notification laws in which government actors took affirmative steps to make sure individuals deemed to be at-risk by legislators (e.g., neighbors) were informed of relevant released offenders, for example, by written notice or a personal visit by a police officer.
Our research also took into account whether these laws had discretionary or mandatory features as they evolved over time. Finally, with respect to internet registries, we conducted a separate investigation to determine not only when each web registry law became effective, but when each site became operational in fact and largely complete in its coverage.
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With data on individual sex offense incidents by county for 15 states over many years, we were in a position to conduct a fairly straightforward “program evaluation” had we wished to go that route. In effect, using multiple regression analysis, we could have proceeded by examining how the frequency of sex offenses (and the types of sex offenses—in particular, the frequency of sex offenses between neighbors or acquaintances) changed in response to the implementation of registration and notification laws. With 15 states and a long stretch of years, we were able to control for national trends or a trend over time in a single state (one that might affect the number of sex offenses at just around the time a state passed a sex offender law) to ensure that neither was confounding our results. Our data allow us, for example, to account for state-specific trends in the number of sex offenses as well as trends in other crime levels.
If we were interested purely in whether registration and notification laws reduced crime on the whole, this would have been the appropriate strategy. But these laws have been defended as attempts to reduce sex offender recidivism, not merely as additional deterrents to “potential” or non-registered sex offenders. As described above, public registration laws could theoretically reduce new sex offenses in one of two ways: (1) by deterring non-registered offenders (who wish to avoid, for example, the burdens and shame of public notification should they be caught and convicted); and (2) by reducing the recidivism of registered offenders by providing information to and facilitating monitoring by the public. Our research design was constructed to assess each of these possibilities separately.
Separately identifying and measuring these two hypothetical consequences of notification laws is essential, but difficult to do persuasively with comprehensive federal crime data because these data do not indicate whether a crime was committed by a registered sex offender or a new, non-registered offender.
Our research solved this problem in an intuitive way. Although we, too, were unable to observe whether a crime in our data was committed by a registered sex offender or by a nonregistered or potential offender, we made use of the following simple fact: registration and notification laws cannot reduce (or increase) the frequency of sex offenses through changes in recidivism levels (by, for example, improving police and public monitoring or by informing potential victims of nearby threats) when nobody or only a few convicted sex offenders are subject to these laws—i.e., when registries are close to “empty.” On the other hand, both registration and notification laws can, in theory, reduce the frequency of sex offenses even when registries are “empty” by deterring potential sex offenders who fear becoming subject to these laws in the future if they are convicted of committing a sex crime.
We extend this logic in our research to take advantage of the significant variation in retroactive coverage of registration and notification laws across states. This coverage variation resulted in dramatic differences in the numbers of covered individuals as these laws became effective: some states applied their laws only prospectively; others made them retroactive, applying them to individuals convicted and/or released over a range of different time frames.
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Accordingly, as states began to enforce their registration and notification laws, some states had large registries while others had empty or nearly empty registries.
To operationalize this idea, we collected registry size data for each state at different points in time, and used county-level registry sizes in August 2007 to estimate the size of the registry in each county for each month. In effect, we studied how county patterns in the number and type of sex offenses vary with registry size over time. If these laws worked to reduce recidivism, we would have expected to see that counties with larger registry sizes had greater relative reductions in the number sex offenses, all else equal (i.e. after controlling statistically for other differences across counties, states, and time—crime rates and how they change, demographics and how they change, national trends and shocks, etc.). This pattern is not what we found, however.
C. Explaining Why Notification Laws, though Intended to Keep People Safe, Actually Increase Recidivism
The conclusion of our research that notification appears to increase recidivism (see part A) may seem counterintuitive at first blush. After all, notification (i.e., the active identification of sex offenders through public registries) is designed to alert potential victims to the threat a nearby released sex offender may pose. But, for this approach to reduce the recidivism levels of released sex offenders, two separate conditions must be met.
First, for notification laws to reduce recidivism, the public identification of sex offenders must make it more difficult, on average, for an offender to commit a sex crime.
This condition, in turn, requires 1) that individuals who are likely to be victimized must be newly informed of an offender’s status as a result of the operation of the notification law, 2) that potential victims are newly capable of acting in ways that reduce their exposure to victimization by registered offenders, and 3) that a released offender who becomes at risk for committing a new crime will not discover an alternative victim nearby who is either unaware of the offender’s status or is unable to act on the basis of that information to reduce (or reduce by a lot) the risk of becoming a victim.
But, as ample research demonstrates, offenders are rarely strangers to their victims. Friends and family members will often already be aware of a sex offender’s criminal history. When the potential victim of an offender is a stranger, it may be hard for the victim to determine the offender’s status or to reduce her exposure. Even if the victim is able to reduce her exposure, a released offender who becomes at risk for reoffending may find himself surrounded by other potential victims, many or some of whom are unaware, in all or almost all cases. Neighbors seem most likely to benefit from notification so long as they receive the information and are able to behave in ways that reduce their risks. Neighbors, however, make up much less than 5% of all sex offense victims (Prescott & Rockoff (2011), at p.176).
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Second, for notification to reduce recidivism, these laws must avoid aggravating the risk factors that significantly increase an offender’s chance of reoffending.
Even if notification were to succeed at making it more difficult for sex offenders to reoffend, recidivism might still increase under notification regimes: after all, the difficulty of committing a crime is only one factor, among many, affecting an offender’s likelihood of recidivating. Publicly identifying an individual as a sex offender (as well as imposing other significant burdens— residency restrictions, frequent reporting requirements, etc.), on the other hand, influences many of these factors by dramatically changing a sex offender’s daily life, future prospects, and psychological and financial burdens. While a law that imposes restraints and/or burdens on a released offender does have the potential to reduce recidivism if that law makes the commission of crime more difficult or if it mitigates risk factors, such a law also has the potential to increase recidivism if it exacerbates risk factors (e.g., unemployment, unstable housing) that are known to contribute to reoffending.
Notification regimes, with their attendant registration burdens, appear much more likely to increase the likelihood that affected individuals return to crime, all else equal. These laws and their application exacerbate recidivism risk factors. Many compelling studies have established that publicly identifying sex offenders makes it more difficult for them to find employment and housing, residency restrictions make everything more expensive and life less stable, and both make it harder for registered offenders to be with family. Life as a registered sex offender, by all accounts, is simply much more difficult than it otherwise would be—in no small part because of the operation of sex offender post-release laws.
Notification schemes are intended to reproduce an upside of incarceration, essentially by “incapacitating” potential recidivists. Public registration attempts to create a barrier between released sex offenders and potential victims. Unfortunately, the analogy of post-release laws to prison is too apt: the public identification of individuals as “sex offenders” reproduces many of the deprivations and burdens of prison in addition to the incapacitation effect. Plus, by making the world outside of prison more like being in prison, the threat of sending someone to prison should he commit another sex crime is much reduced. Put another way, the more difficult, lonely, and unstable a registered sex offender’s life is, the more likely he is to return to crime— and the less he has to lose by committing new crimes.
It is easy to see, therefore, that the effect on recidivism of public registration laws (and of most sex offender post-release laws generally) is an empirical question: the effectiveness of these laws will depend on how they are structured and applied.
If notification and its associated burdens make it more difficult for a registered sex offender to find victims, while at the same time not aggravating the risk factors known to lead to recidivism and not reducing a registered offender’s desire to avoid prison, then crime rates should drop. But if these laws impose significant burdens on a large share of former offenders, and if
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only a limited number of victims benefit from knowing who and where sex offenders are, then we should not be surprised to observe more recidivism under notification, with recidivism rates rising as notification expands.
3. Evidence from a Compendium of Sex Offender Post-Release Laws
A. The Purposes and Process of Compilation
To carry out my empirical research into the consequences of sex offender post-release laws, and to create a resource for other researchers, I have compiled a comprehensive history (compendium) of such laws for each of the 50 states.
In order to understand the consequences of these laws on health, crime, life prospects, etc., it is necessary to carefully distill the substantive provisions of these laws into categories that can be useful for analysis. Because my work is empirical and requires comparisons across states, I designed the compendium from the outset not only to include all substantive post-release laws that are applied specifically to sex offenders, but also to ensure consistent notation and organization across states. The compendium thus records and describes the establishment and subsequent evolution of all forms of laws targeted exclusively at controlling and supervising sex offenders— including sex offender registration, community notification, residency restrictions, employment restrictions, and civil commitment, among others.
The record begins for most states in the late 1980s or 1990s—Michigan’s story begins in 1994, when its legislature enacted its first registration law—but in the intervening years, dozens of laws have been passed in every state, creating a complicated, constantly changing picture for released offenders subject to registration and notification. The compendium is regularly updated, and is current through the end of 2009 (which is sufficient for its primary purpose—facilitating empirical research—as any study of a post-release law’s consequences requires a significant post-period for measurement.) The compendium contains over 1000 pages of concise descriptions of every state’s sex offender post-release laws.
In the 2000s, states began developing and deploying a number of new post-registration restrictions (and imposing new duties) on released sex offenders. Most of these more recent postrelease restrictions have been built “on top” of the basic registration framework laid down in the early 1990s. In Michigan (as in many other states), examples include residency restrictions, employment restrictions, and loitering restrictions, first adopted in 2005 and effective on the first day of 2006.
A limitation of the compendium is that it focuses on “substantive” restrictions on behavior, not the many burdensome “procedural” requirements that must be satisfied for a released sex offender to remain free (such as registering changed residency information within a specified number of days, paying for updating registration information, etc.). Although the compendium does contain some of this information, and it is often easy to see how many new procedural
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obligations have been added to Michigan’s and other states’ sex offender post-release laws, the compendium is underinclusive in that it omits many of the complicated day-to-day requirements and fees that covered offenders are under pain of penalty to satisfy.
B. Evidence from the Compendium
Analysis of the evolution of the sex offender laws of the 50 states shows that the number of post-release obligations, restrictions, constraints, and disabilities placed on sex offenders has exploded over the last twenty years and especially during the last decade.
With very few exceptions, sex offender post-release laws across the states have been caught for years in a one-way ratchet of imposing increasingly severe and burdensome restraints and disabilities on released sex offenders. In many states, these laws have become progressively more wide-reaching on an almost yearly basis, requiring more and more of an individual’s time (and money) to remain in compliance. The regular changes and growing complexity of these laws make compliance more difficult and innocent errors more common. Furthermore, legislatures regularly broaden the scope of laws that had been previously on the books, adding new individuals to the class of “registered sex offenders,” even though the crimes newly covered may have been committed many years in the past.
The structures undergirding the vast array of state sex offender laws are the basic sex offender registration statutes. Historically, a state identified those individuals it wished to register for the sake of monitoring (often by their crimes of conviction), and defined that category as “sex offenders” or some similar term. Registration statutes sometimes created two or more groups of offenders, differentiating one from the other and from non-sex offenders on the basis of the perceived seriousness of the crime of conviction and the perceived need, in particular, to register the groups in question.
Although these groups were demarcated for a particular purpose (i.e., for registration and police monitoring) at a particular point in time, subsequent sex offender post-release laws have in effect piggybacked on the existing structure and definitions. Yet it has never been made clear whether the individuals who the legislature originally determined ought to be publicly registered as sex offenders also ought to be subject to residency restrictions, employment restrictions, etc. Nor is it clear that those who are subject to residency restrictions ought to be subject also to employment restrictions, and vice versa.
In other words, the panoply of obligations and restrictions now knotted up with “sex offender” registration are premised on an individual’s underlying status as a registrant regardless of whether those particular obligations and restrictions are appropriate for the wide range of individuals who are now classified as sex offenders. Consequently, registration requirements have become indistinguishable in many states from the package of myriad restrictions and obligations that legislatures have enacted in recent years.
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Registration laws and the post-release laws that derive from them share, as a general matter, a number of other characteristics, as well.
First, failure to comply with the increasingly complex and confusing restraints and disabilities will not uncommonly return a registered individual to incarceration, and these failures are often considered strict liability offenses (see, e.g., MCL § 28.735, MCL § 28.734; MCL § 28.729(2)). Considerable vagueness plagues many of the definitions of these constraints and obligations. There is often little discretion on the part of judges or others to loosen these restrictions, and the penalties for violations can be severe.
Second, while the basic categories of sex offender restrictions built on top of the early registration statutes seem straightforward enough in the abstract (e.g., residency restrictions), the vast web of sex offender post-release laws across the states are numerous, unpredictable, unexpected, burdensome, complicated, and often vague. In the attached exhibit, I list and describe several examples taken from the compendium (relying on state laws through 2009) and other research conducted for this report. Note the sheer volume of constraints and obligations the laws impose, and the constant vigilance required of offenders to stay in compliance.
One serious set of difficulties for registered sex offenders arises from the fact that they face additional obligations in other states should they travel. Post-release laws allow only very small windows within which to comply, and because there is incredible variety in the procedures and substantive obligations across the states, confusion is certain, in addition to the time and effort the satisfaction of these obligations requires.
For example, consider an offender who must register in Michigan because he maintains a residency in the state (see M.C.L. 28.723, which requires offenders “who are domiciled or temporarily reside in this state or who work with or without compensation or are students in this state” to register). If this offender visits Ohio for more than three days at a time, works there, or attends school there, he must register in Ohio as well (see R.C. § 2950.04). In Indiana, an offender must register if he spends or intends to spend at least seven days, inclusive, in Indiana, or if he owns any real property in Indiana and returns to the state at any time (see IC 11-8-8-7). Registration laws are written such that individuals may have to be simultaneously registered in many states at a time and yet the rules and procedures for registration vary by enough to make complete compliance difficult and time-consuming. It does not help that many states require regular in-person registration.
Consider other types of post-release restraints for a Michigan registrant who travels regularly, as well: Indiana prohibits certain registrants from residing (for a period longer than 3 nights in one location in any 30-day period) within 1000 feet of a school, youth program center, or public park (see IC 35-42-4-11). Ohio prohibits offenders from residing within 1000 feet of any school or child day care center (see R.C. § 2950.034). Thus, while both states have residency restrictions, who is subject to them and what areas are off-limits varies by state. Consequently,
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registered individuals travelling to other states where they also must register will be subject to a range of different regimes of post-release laws.
Finally, while post-release laws are typically defended as attempts by legislatures to reduce recidivism and improve public safety, the history of these laws across the states undermines this interpretation (and instead is suggestive of an interest in punishment):
• States enacted and implemented registration and notification laws with no sustained or rigorous study of their likely consequences, often doing so in response to a public outcry and anger following a particular crime.
• A significant body of empirical work has examined the behavior of convicted sex offenders and the likely consequences of sex offender registration and notification laws on recidivism. This evidence is consistent with my work, showing overwhelmingly that, at best, public registration does not improve recidivism rates, and it may well be counterproductive.
• Despite this research, most of these laws and their amendments remain non-evidencebased and do not reflect our current understanding of how sex offenders behave, or what research suggests works and does not work in reducing their recidivism levels.
• Research has also demonstrated that these laws are financially costly to states and local governments, create a great deal of useless fear among members of the public, and are financially, physically, and emotionally costly to covered offenders.
• Many states impose post-release laws on the basis of the crime of conviction, regardless of whether the offender presents any risk to anyone and regardless of the availability of accurate and cost-effective risk assessment protocols.
Pursuant to 28 U.S.C. § 1746, I state under penalty of perjury that the above statements are true and correct to the best of my knowledge, information, and belief.

Dated: March 15, 2012

______________________ James J. Prescott, J.D., Ph.D.

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ATTACHMENT A CONSEQUENCES TRIGGERED BY MICHIGAN SEX OFFENDER
REGISTRATION, A NATIONAL SAMPLE

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Consequences Triggered by Michigan Sex Offender Registration: A National Sample
In addition to complying with their home state’s registration requirements, Michigan registrants must also comply with the idiosyncratic laws of any jurisdiction in which they are “temporarily domiciled.” In many states, including nearby Ohio, Illinois, and Pennsylvania, a visit lasting longer than two days triggers registration, even if the registrant’s crime of conviction would not have otherwise warranted registration in those states.
Examples of such reciprocal registration laws include: Colo. Rev. Stat. § 16-22-103 (“[A]ny person convicted of an offense in any other state or jurisdiction . . . for which the person, as a result of the conviction, is, was, has been, or would be required to register if he or she resided in the state or jurisdiction of conviction . . . shall be required to register in the manner specified in section 16-22-108, so long as such person is a temporary or permanent resident of Colorado.”); Mich. Comp. Laws § 28.724(6)(d); Ohio Rev. Code Ann. § 2950.04(4); 42 Pa. Cons. Stat. § 9795.2(b)(4) (all substantively similar). Every state appears to have some sort of reciprocal registration law.
Thus, registrants who travel out-of-state, even temporarily to visit family or to engage in business, may find themselves subject to unfamiliar, unpredictable, and burdensome obligations and restrictions—not to mention registration fees. As these laws reach into many areas of life, they render it very difficult to travel lawfully. This exhibit highlights some of these travel-related burdens and provides examples of some of the more unexpected and onerous sex offender laws from around the country, to which Michigan registrants are subject if they move or travel to other states.
1. Reporting, Surveillance, and Supervision
• Registrants must register, in person, if they visit for longer than two days in Illinois, Maryland, or Ohio, and if they spend 7 days in Indiana over any six-month period. They must register within 48 hours of arriving in Pennsylvania and by the first working day of arriving in Alaska. These obligations apply even if the registrant intends to stay only temporarily. Other states mandate similar time periods for registration. Alaska Stat. § 12.63.010; 730 Ill. Comp. Stat. 150/3(a)(1); Ind. Code § 11-8-8-7(a); Md. Code Ann. Crim. Proc. § 11-705(b)(5)(3); Ohio Rev. Code Ann. § 2950.04(4) (West); 42 Pa. Cons. Stat. § 9795.2(b)(4).
• In Illinois, registrants must pay a $100 initial registration fee and a $100 annual renewal fee; in Iowa, registrants must pay a $200 or $250 one-time fee post-conviction, plus a $25 annual registration fee; and in Idaho, registrants must pay a $40 annual registration fee. Idaho Code Ann. § 18-8307(2); 730 Ill. Comp. Stat. 150/3(c)(6); Iowa Code § 692A.110.
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• In Alabama, registrants must obtain travel permits if they intend to leave their county of residence temporarily for more than two days. Ala. Code § 15-20A-15.
• In Illinois, registrants must provide law enforcement with a detailed travel itinerary if they will be away, or intend to be away, from their registered residence for more than two days; in Alabama, for visits longer than two days; and in Iowa, for visits longer than five days. Ala. Code § 15-20A-15; 730 Ill. Comp. Stat. 150/3; Iowa Code § 692A.105.
2. Denial of Access to Public Accommodations
• In Warren, Michigan, registrants are banned from public parks, playgrounds, or city recreation facilities. Warren Mun. Code 22-140 (Warren, MI). See also Irvine Mun. Code 4-14-803 (Irvine, CA) (similarly, for registrants convicted of crimes involving minors).
• In Huachuca City, Arizona, registrants are banned from all public places, including public schools, parks, pools, and libraries. Sonu Wasu, Ordinance Bans Registrants From All Public Places, Tucson News Now (Sept. 26, 2011).
• In Iowa, certain registrants are barred from public libraries, and in Tennessee, library directors may exclude registrants at any time. Iowa Code § 692A.113(f); Tenn. Code Ann. § 40-39-216. But see Doe v. City of Albuquerque, 667 F.3d 1111 (10th Cir. 2012) (striking down municipality’s library ban on First Amendment grounds).
• In Florida, registrants may be banned from public hurricane or emergency shelters. Sex Offenders Kept From Storm Shelters, Associated Press (Aug. 8, 2005), http://www.nytimes.com/2005/08/08/national/08florida.html. In Collier County and Indian River County, registrants must be kept in a separate room of the shelter. In Lee County, registrants may use only “pre-designated” shelters specifically intended for registrants. Collier County, Fla. Code of Ordinances 111-33; Indian River County, Fla. Code of Ordinances 306.06; Lee County, Fla. Code of Ordinances 24!-5.
3. Restrictions on Religious Participation and Social Activities
• In Georgia, registrants cannot work or volunteer at a church. Ga. Code. Ann. § 42-115(c)(1).
• In Oklahoma, registrants must receive written permission from the “religious leader” of a church or other institution before entering to worship. Okla. Stat. tit. 21, § 1125(E).
• In North Carolina, certain registrants may not be present in any place where minors gather for regular educational, recreational, or social programs. N.C. Gen. Stat. § 14208.18(a)(3). That includes churches and other institutions of religious worship. See
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Bonnie Rochman, Should Sex Offenders Be Barred from Church? Time (Oct. 14, 2009), http://www.time.com/time/nation/article/0,8599,1929736,00.html.
• In North Hudson, Wisconsin, registrants cannot “participate in any holiday event involving children,” except if the registrant is the parent or guardian and no other children are present. North Hudson, Wis. Code of Ordinances 70-95.
• In Tennessee, certain registrants may not “[p]retend to be, dress as, impersonate or otherwise assume the identity of a real or fictional person or character or a member of a profession, vocation or occupation while in the presence of a minor.” Tenn. Code Ann. § 40-39215(a)(1).
• In Missouri; Nassau County, Florida; and Orange County, California, registrants on Halloween must post a sign stating, “No candy or treats at this residence,” and must turn off all outside residential lighting. Missouri registrants must also stay inside their homes “unless required to be elsewhere for just cause.” Mo. Rev. Stat. § 589.426; Nassau County, Fla. Code of Ordinances 19!-44; Orange, Cal. Code of Ordinances 9.10.045. See also F.R. v. St. Charles County Sheriff’s Dept., 301 S.W.3d 56 (Mo. 2010) (finding the Missouri provision punitive and prohibiting its retroactive application).
4. Restrictions on Civic Engagement
• In Minnesota and Missouri, registrants cannot be candidates for school board positions. Minn. Stat. § 609B.123; Mo. Rev. Stat. § 162.014.
• In Illinois, registrants cannot be selected as election judges. 10 Ill. Comp. Stat. 5/14-1. • In Virgo County, Indiana, registrants cannot vote at schools. Officials: Sex Offenders
Can’t Vote at Schools, WTHI (Terre Haute, IN) (May 10, 2011), http://www.wthitv.com/ dpp/news/local/officials%3A-sex-offenders-can%27t-vote-at-schools.
5. Free Speech, Internet, and Web Site Restrictions
• In Kentucky and North Carolina, registrants are barred from using social networking Web sites or instant messaging and chat room programs if those Web sites or programs also permit minors to use them. Ky. Rev. Stat. Ann. § 17.546 (West); N.C. Gen. Stat. § 14-202.5. For statutes imposing this restriction only on certain registrants, see Ind. Code § 35-42-4-12; La. Rev. Stat. Ann. § 14:91.5; Neb. Rev. Stat. § 28-322.05; Tex. Gov’t Code Ann. § 508.1861.
• Such Web sites are defined broadly to include “any Internet website through which users have the ability to communicate via text and which allows messages to be visible to all other users or to a designated segment of all other users.” La. Rev. Stat. Ann. §
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14:91.5(c)(1). But see Doe v. Jindal, No. 11-554-BAJ-SCR, 2012 WL 540100 (M.D. La. Feb. 16, 2012) (striking down statute barring certain registrants from accessing social media as substantially overbroad and therefore a violation of the First Amendment). • In Indiana, registrants must sign a “consent form” authorizing law enforcement authorities to search “at any time” their personal computers or other devices with Internet capability, as well as to install hardware or software to monitor their Internet usage. This installation shall occur at the registrant’s expense. Ind. Code § 11-8-8-8(b). • In New Jersey, registrants whose crime involved a computer or any other device with Internet capability must receive court approval to use any device with Internet access and must submit to unannounced searches of those devices. N.J. Stat. Ann. § 2C:43-6.6. • In Wisconsin, a registrant cannot intentionally photograph a minor without obtaining the written consent of the minor’s parent or guardian and notifying the parent or guardian of the registrant’s registration status. Wis. Stat. § 948.14. See also Ga. Code Ann. § 42-1-18.
6. Identification Cards
• In Alabama, Indiana, and Tennessee, registrants must carry identification at all times. Ala. Code § 15-20A-18(a); Ind. Code § 11-8-8-15; Tenn. Code Ann. § 40-39-213.
• In Florida, Tennessee, and Texas, registrants must carry special driver’s licenses or identification cards that clearly indicate that they are sex offender registrants. Fla. Stat. § 322.141; Tenn. Code Ann. § 55-50-353; Tex. Transp. Code Ann. § 521.057.
• In Texas, registrants must renew their driver’s license or personal identification cards annually. Tex. Code Crim. Proc. Ann. art. 62.060 (West).
7. Housing Restrictions
• Across the country, any person whose household includes a person subject to life-time registration is barred from accessing federally subsidized housing. 42 U.S.C. § 13663 (2006).
• In Delaware, Illinois, Indiana, Maryland, and Washington, among other states, homeless registrants must report to the local sheriff, in person, once a week. Del. Code Ann. tit. 11, § 4120; 730 Ill. Comp. Stat. 150/3(a); Ind. Code § 11-8-8-12(c); Md. Code Ann., Crim. Proc. § 11-705(d)(2); Wash. Rev. Code § 9A.44.130(5)(b).
• In Pennsylvania, any person, homeless or not, who “fails to establish a residence” where he or she “is domiciled or intends to be domiciled for 30 consecutive days,” must report
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in person once a week. Such individuals must also report “a list of places the individual eats, frequents and engages in leisure activities.” 42 Pa. Cons. Stat. § 9795.2(a)(2).
• In California, a registrant on parole may not live with any other registrant in a “single family dwelling.” In Oregon, registrants on probation, parole, or supervision may not “reside in any dwelling” together. In Idaho and Oklahoma, a registrant may not live with more than one other registrant. Of these states, only California and Oklahoma provide statutory exceptions to allow married or related registrants to live together. Cal. Penal Code § 3003.5(a); Idaho Code Ann. § 18-8331; Okla. Stat. tit. 57, § 590.1; Or. Rev. Stat. § 144.642.
8. Employment Restrictions
• In Daytona Beach, Florida, registrants cannot work as garbage collectors for recycling or waste disposal franchisees. Daytona Beach Shores, Fla. Code of Ordinances 12-7.
• In Georgia, registrants are barred from working or volunteering at any childcare facility, school, or church – or “at any business or entity that is located within 1,000 feet of a childcare facility, a school, or a church.” Ga. Code. Ann. § 42-1-15(c)(1).
• In Louisiana, registrants cannot operate any bus, taxicab, or limousine, or work in any service position that would involve entering a residence. La. Rev. Stat. Ann. § 15:553.
• In Massachusetts, New York, and Tennessee, registrants cannot operate an ice cream truck. Mass. Gen. Laws ch. 265, § 48; N.Y. Correct. Law § 168-v; Tenn. Code Ann. § 40-39-215(a)(3).
• In Illinois, certain registrants cannot work at a state or county fair, lease to a family with children, or operate vending, rescue, or emergency vehicles. 720 Ill. Comp. Stat. 5/119.3.
9. Restrictions by Private Businesses and Universities
Many private actors also use sex offender registries to deny registered individuals goods and services. Examples include:
• Mary Helen Miller, Lake Michigan College Bans Sex Offenders of Children from Its Campuses, The Chronicle of Higher Education (Mar. 3, 2010), http://chronicle.com/ article/Lake-Michigan-College-Bans-Sex/64474/.
• Muskegon YMCA Revokes Memberships of Registered Sex Offenders, Associated Press (Nov. 29, 2007), http://blog.mlive.com/kzgazette/2007/11/muskegon_ymca_revokes_ membersh.html (crediting the Michigan online sex offender registry for “making the
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policy even possible”); Emily Friedman, YMCAs Revoke Memberships of Registered Sex Offenders, ABC News (Feb. 4, 2010), http://abcnews.go.com/US/ymca-communitycenters-membership-sex-offenders/story?id=9737459 (explaining how 12 Connecticut YMCAs revoked memberships after cross-referencing their membership lists against the state’s sex offender registry). • Assoc. Asks Church with Sex-offender to Resign, Town Hall Magazine (Mar. 08, 2012), http://townhall.com/news/religion/2012/03/08/assoc_asks_church_with_sexoffender_to_ resign (reporting that the Jacksonville Baptist Association in Jacksonville, Florida, is seeking a member church’s resignation after the church hired a registrant as a minister). • Heather May & Julia Lyon, Utah Children’s Hospital Screens Visitors to See if They Are Sex Offenders, The Salt Lake Tribune (Dec. 18, 2011), http://www.sltrib.com/sltrib/news/ 53116318-78/visitors-hospital-primary-sex.html.csp (reporting on computerized check-in program used to identify registered sex offenders at “more than 100 other hospitals across the country”). This Utah children’s hospital reportedly allows registrants to visit their own children (while devoting “extra scrutiny”) but asks other registrants to leave. • Carol J. Williams, Match.com Agrees to Screen for Sex Offenders to Settle Lawsuit, Los Angeles Times (Aug. 24, 2011), http://articles.latimes.com/2011/aug/24/local/la-mematch-20110824 (reporting that “the company’s promise to screen all members is expected to spark a new industry norm”). • Aline Reynolds, Facebook and Myspace Kick Out Thousands of NY Sex Offenders, Discover Magazine (Dec. 4, 2009), http://blogs.discovermagazine.com/80beats/2009/12/ 04/facebook-and-myspace-kick-out-thousands-of-ny-sex-offenders/; MySpace Kicks Out 90,000 Sex Offenders, Connecticut AG Says, CNN Tech (Feb. 3, 2009), http://articles. cnn.com/2009-02-03/tech/myspace.sex.offenders_1_hemanshu-nigam-myspace-sexualpredators.
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ATTACHMENT B CURRICULUM VITAE

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JAMES J. PRESCOTT
University of Michigan Law School Ann Arbor, MI 48109 734-763-2326 jprescott@umich.edu

EMPLOYMENT

UNIVERSITY OF MICHIGAN LAW SCHOOL, Professor of Law (2011–). Assistant Professor of Law (2006–11).

Research:

Criminal Law Empirical Law and Economics Sentencing and Corrections Employment Law

Teaching:

Criminal Law Employment Law Law and Economics Workshop Economic Analysis of Law

Service:

Organizer, Law Student Research Roundtable (2007–); University of Michigan Civil Liberties Board (2010–13); Technology Committee (2010–11); Alumni Promotion Committee (2010–11); Institutional Advancement Committee (2009– 11); Academic Standards and Practices Committee (2009–10); Clinical Committee (2008–09); Student Careers and Professional Affairs Committee (2007–08); Curriculum Committee (2006–07).

EDUCATION

MASSACHUSETTS INSTITUTE OF TECHNOLOGY, Ph.D., Economics, 2006

Honors: Dissertation:

MIT Department of Economics Fellowship (1997–99) Jacob K. Javits Fellowship (1998–2002) Essays in Empirical Law and Economics (Advisers: David Autor, Michael Greenstone, Christine Jolls)

HARVARD LAW SCHOOL, J.D., 2002

Honors: Clerkship:

Graduated magna cum laude John M. Olin Fellowship in Law and Economics (1999–2002) Treasurer (Vol. 115) and Editor, Harvard Law Review Hon. Merrick B. Garland, U.S. Court of Appeals for the D.C. Circuit (2002–03)

STANFORD UNIVERSITY, B.A., Public Policy and Economics, 1996

Honors: Thesis:

Graduated with Honors and Distinction; Phi Beta Kappa (elected in junior year); Ethics-in-Society Honors Program; Presidential Award for Excellence in the Freshman Year; Truman Scholar Finalist (CA) Why Vote? Using Principles to Solve the Paradox of the Irrational Voter

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PUBLICATIONS & MANUSCRIPTS
Prescott, J.J., “Child Pornography and Community Notification: How an Attempt to Reduce Crime Can Achieve the Opposite” Federal Sentencing Reporter, 24 (2011), 93–101.
Prescott, J.J. and Jonah E. Rockoff, “Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?” Journal of Law and Economics, 53 (2011), 161–206.
Prescott, J.J., “The Challenges of Calculating the Benefits of Providing Access to Legal Services,” Fordham Urban Law Journal, 37 (2010), 303–46.
Prescott, J.J., Kathryn E. Spier, and Albert H. Yoon, “Settlement and Trial? A Study of High-Low Agreements,” revise and resubmit at Journal of Law and Economics.
Prescott, J.J., “Measuring the Consequences of Criminal Jury Trial Protections,” revise and resubmit at Journal of Legal Studies.
Prescott, J.J, and Sonja B. Starr, “Improving Criminal Jury Decision Making After the Blakely Revolution,” University of Illinois Law Review, 2006, 301–56.
Jolls, Christine M. and J.J. Prescott, “Disaggregating Employment Protection: The Case of Disability Discrimination,” NBER Working Paper 10740 (2004).
WORKS IN PROGRESS
Prescott, J.J., “Empirical Evidence of Prosecutorial Charging Manipulation: And What It Tells Us about What Prosecutors Are Trying to Do,” draft available.
Garrett, Brandon L. and J.J. Prescott, “Determinants of Success in Post-Conviction Litigation by the Innocent,” draft available.
Prescott, J.J., and Sonja Starr, “Evaluating the Impact of Criminal Record Set-Aside Laws on Recidivism and Socioeconomic Outcomes,” 15-page funding narrative available.
Prescott, J.J., “The Possibilities of Offender Choice in Sentencing: Eliciting Forward-Looking Information,” précis and partial draft available.
Klick, Jonathan, and Prescott, J.J., “The Effect of Sex Offender Laws on the Sexual Abuse and Health of Minors,” 25-page funding narrative available.
Prescott, J.J., and Eric B. Laber, “The Effects of Judge, Prosecutor, and Defendant Race and Gender Interactions on Defendant Outcomes,” 15-page funding narrative available.
Bailey, Martha J., and J.J. Prescott, “The Regulation of Vice in the 1960s: The Case of Contraception as ‘Obscene,’” précis available.
Prescott, J.J., “Data Set: New Orleans District Attorney’s Office Data, 1988-1999,” including arrest, charging, conviction, and sentencing data with judge, prosecutor, and defendant identifiers and over 30,000 defendant observations.
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OTHER WRITING & RESEARCH
Prescott, J.J., “A Fifty-State Compendium of Sex Offender Regulation,” mimeo (2010).
Prescott, J.J., “Tort as a Debt Market: Agency Costs, Strategic Debt, and Borrowing against the Future, Harvard Law Review, 115 (2002), 2294–316 (Student Note).
Prescott, J.J., “Prevailing Party—Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 121 S. Ct. 1835 (2001),” Harvard Law Review, 115 (2001), 457– 67 (Student Supreme Court Case Comment).
Prescott, J.J., “Second Circuit holds that Punitive Damages are Unavailable against Municipalities— Ciraolo v. City of New York, 216 F.3d 236 (2d Cir. 2000),” Harvard Law Review, 114 (2000), 666–72 (Student Recent Case Comment).

GRANTS AND AWARDS
University of Michigan, Office of the Vice President for Research ($15,000) (2011) (“The Role of the Prosecutor in Criminal Justice Outcome Disparities”)
Population Studies Center, University of Michigan ($4,000) (2011) (“The Effects of Sex Offender Laws on Teenage Sexual Health and on the Geography of Crime Commission”)
National Fellow, Hoover Institution, Stanford University, Stanford, CA (2010–11)
National Science Foundation, Law and Social Sciences Program ($145,000) (2010) (“Evaluating the Impact of Set-Aside Laws on Ex-Offender Recidivism and Socioeconomic Outcomes”) (Co-PI: Sonja Starr)
University of Michigan, Office of the Vice President for Research ($15,000) (2009) (“Evaluating the Impact of Set-Aside Laws on Ex-Offender Recidivism and Socioeconomic Outcomes”)
National Poverty Center, University of Michigan ($7,500) (2009) (“Evaluating the Impact of SetAside Laws on Ex-Offender Recidivism and Socioeconomic Outcomes”)
ABA Section on Litigation, Litigation Research Fund ($12,000) (2008) (with Albert Yoon) (“Settlement and Trial? A Study of High-Low Agreements”)

Affiliations:

PROFESSIONAL ACTIVITIES
Faculty Affiliate, Population Studies Center, University of Michigan Associate Editor, International Review of Law and Economics Member, State Bar of California (admitted in 2002) Member, American Bar Association Member, American Economic Association Member, American Law and Economics Association

Referee Service: Journal of Legal Studies Journal of Law and Economics

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Journal of Empirical Legal Studies American Law and Economics Review Review of Law and Economics Quarterly Journal of Economics Review of Economics and Statistics Journal of Labor Economics American Economic Journal: Applied Economics Journal of Public Economics Law and Society Review Law and Social Inquiry Crime and Delinquency

Research: Law Practice:

OTHER EMPLOYMENT
Visiting Lecturer, University of Tokyo Faculty of Law (Summer 2009) Visiting Researcher, Georgetown University Law Center (2004–2006) Special Guest, Brookings Institution, Economic Studies Program (2004–2005) Fellow in Law and Economics, Univ. of Michigan Law School (Winter 2005) Post-Graduate Olin Research Fellow, Harvard Law School (2003–2004) Research Assistant, Brookings Institution, Economic Studies (1996–1997)
Summer Associate, Gibson, Dunn & Crutcher, LLP, New York, NY (2002) Summer Associate, Munger, Tolles & Olson, LLP, Los Angeles, CA (2001) Summer Associate, Morrison & Foerster, LLP, San Francisco, CA (2001) Summer Associate, Gibson, Dunn & Crutcher, LLP, Los Angeles, CA (2000)

2012:

PRESENTATIONS
University of Toledo College of Law (Toledo, OH) (March) (“Criminal Choice in Sentencing”)

2011:

CELS Meetings (Northwestern Law School) (Chicago, IL) (November) (Discussant on Jonah Gelbach, “The Effects of Heightened Pleading on Motion to Dismiss Adjudication”)
University of Chicago Law School (Law and Economics Workshop) (Chicago, IL) (November) (“Criminal Choice in Sentencing”)
Columbia Law School (Law and Economics Workshop) (New York, NY) (October) (“Settlement and Trial? A Study of High-Low Agreements”)
Stanford Law School (Faculty Workshop) (Palo Alto, CA) (March) (“Settlement and Trial? A Study of High-Low Agreements”)
Cornell Law School (Empirical Colloquium) (Ithaca, NY) (March) (“Settlement and Trial? A Study of High-Low Agreements”)
NBER Mid-Year Law and Economics Meetings (Cambridge, MA) (February) (Discussant on Howard Chang & Hilary Sigman, “An Empirical Analysis of Cost Recovery in Superfund Cases: Implications for Brownfields and Joint and Several Liability”)

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2010:

Conference on Empirical Legal Studies (Yale Law School) (New Haven, CT) (November) (“Settlement and Trial? A Study of High-Low Agreements”)
CELS Meetings (Yale Law School) (New Haven, CT) (November) (Discussant on Sasha Romanosky, Rahul Telang, and Alessandro Acquisti, “Do Data Breach Disclosure Laws Reduce Identity Theft?”)
American Law and Economics Association Annual Meetings (Woodrow Wilson School of Public Policy) (Princeton, NJ) (May) (“Settlement and Trial? A Study of High-Low Agreements”)
University of Haifa Law School (Law and Economics Workshop) (Haifa, Isreal via Internet) (May) (“Settlement and Trial? A Study of High-Low Agreements”)
University of Virginia Law and Economics of Crime Conference (Charlottesville, VA) (March) (“Determinants of Success in Post-Conviction Litigation by the Innocent”)
Rice University and University of Houston (Applied Economics Workshop) (Houston, TX) (March) (“Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?”)
American Economic Association Annual Meetings (Atlanta, GA) (January) (“Empirical Evidence of Prosecutorial Charging Manipulation” and Discussant on Richard Boylan and Naci Mocan, “Intended and Unintended Consequences of Prison Reform”)

2009:

Harvard Law School (Law and Economics Workshop) (Cambridge, MA) (October) (“Settlement and Trial? A Study of High-Low Agreements”)
University of Michigan, Population Studies Center (Brown Bag) (Ann Arbor, MI) (October) (“Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?”)
University of Toronto, Faculty of Law (Law and Economics Workshop) (Toronto, ON) (September) (“Settlement and Trial? A Study of High-Low Agreements”)
NBER Law and Economics Summer Institute (Cambridge, MA) (July) (“Settlement and Trial? A Study of High-Low Agreements”)
Hastings Law School Faculty Workshop (San Francisco, CA) (February) (“Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?”)
Stanford Law School (Law and Economics Workshop) (Palo Alto, CA) (January) (“Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?”)
American Economic Association Annual Meetings (San Francisco, CA) (January) (“Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?” and “The Effects of Judge, Prosecutor, and Defendant Race and Gender Interactions on Defendant Outcomes”)

2008:

American Bar Association Litigation Section Access to Justice Symposium (Atlanta, GA) (December) (“The Challenges of Calculating the Benefits of Providing Access to Legal Services”)
Searle Center Research Symposium on Empirical Studies of Civil Liability (Northwestern Law School) (October) (“Settlement and Trial? A Study of High-Low Agreements”)
Conference on Empirical Legal Studies (Cornell Law School) (October) (“Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?”)

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CELS Meetings (October) (Cornell Law School) (Discussant on John F. Pfaff, “The Myths and Realities of Correctional Severity: Evidence from the National Corrections Reporting Program on Sentencing Practices”)
Harvard Law School (Law and Economics Workshop) (Cambridge, MA) (September) (“Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?”)
Law and Society Annual Meetings (Montreal, Canada) (May) (“The Effects of Judge, Prosecutor, and Defendant Race and Gender Interactions on Defendant Outcomes”)
American Law and Economics Association Annual Meetings (Columbia Law School) (May) (“The Effects of Judge, Prosecutor, and Defendant Race and Gender Interactions on Defendant Outcomes”)
University of Chicago Law School (Criminal Law Colloquium) (Chicago, IL) (April) (“Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?”)
Brooklyn Law School (Faculty Workshop) (Brooklyn, NY) (April) (“Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?”)
University of Haifa Law School (Law and Economics Workshop) (Haifa, Isreal via Internet) (March) (“Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?”)
University of Virginia School of Law (Law and Economics Workshop) (Charlottesville, VA) (February) (“Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?”)
NBER Mid-Year Law and Economics Meetings (Cambridge, MA) (February) (Discussant on Betsey Stevenson, “Beyond the Classroom: Using Title IX to Measure the Return to High School Sports”)

2007:

Northwestern University Law School (Law and Economics Colloquium) (December) (“Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?”)
CELS Meetings (November) (NYU Law School) (Discussant on Stéphane Mechoulan, “The External Effects of Black-Male Incarceration on Black Females”)
NBER Working Group on Crime (Cambridge, MA) (September) (“Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?”)

National Federal Sentencing Guidelines Seminar (Salt Lake City, UT) (May) (“Using U.S. Sentencing Commission Data in Empirical Research”)
American Law and Economics Association Annual Meetings (Harvard Law School) (May) (“The Effects of Sex Offender Notification laws”)

2006:

Conference on Empirical Legal Studies (Univ. of Texas Law School) (October) (“Empirical Evidence of Prosecutorial Charging Manipulation”)
CELS Meetings (October) (Univ. of Texas Law School) (Discussant on Brandon Garrett, “Judging Innocence”)
Junior Empirical Legal Scholars Conference (Cornell Law School) (September) (“Empirical Evidence of Prosecutorial Charging Manipulation”)

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Law and Society Annual Meetings (Baltimore, MD) (July) (“Measuring the Consequences of Criminal Jury Trial Protections”)
Various Job Talks (January and February) (“Measuring the Consequences of Criminal Jury Trial Protections”) (Michigan; Harvard; Stanford; NYU; Columbia; Univ. of Pennsylvania; UCLA; Georgetown; USC; Washington University; Univ. of Texas)

2005:

Various Job Talks (September through December) (“Measuring the Consequences of Criminal Jury Trial Protections”) (Yale; Univ. of Virginia; Duke; Cornell; Boston Univ.; Minnesota; Univ. of Colorado; William and Mary; Univ. of Miami)
MIT Department of Economics Labor Seminar (November) (“Measuring the Consequences of Criminal Jury Trial Protections”)
Florida State College of Law (Faculty Enrichment Series) (June) (“Measuring the Consequences of Criminal Jury Trial Protections”)
Brookings Institution, Economic Studies Program (Brown Bag Lunch Talk) (June) (“Measuring the Consequences of Criminal Jury Trial Protections”)
American Law and Economics Association Meetings (May) (NYU) (“Measuring the Consequences of Criminal Jury Trial Protections”)

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EXHIBIT 9 DECLARATION OF DR. JILL LEVENSON, PH.D.,
ON SORA STUDIES AND EFFECTS

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Mary Doe, et al., v. Richard Snyder, et al.
EXPERT REPORT/DECLARATION OF JILL LEVENSON, Ph.D.
I, Jill S. Levenson, Ph.D.,state under penalty of perjury as follows:
1. Background and Education
I am an associate professor at Lynn University, College of Liberal Education, Department of Psychology, in Boca Raton, Florida. I earned my Doctorate Degree in Social Welfare at Florida International University in Miami (2003). I earned my Masters Degree in Social Work at the University of Maryland, School of Social Work in Baltimore (1987). I earned my Bachelor of Arts Degree in Sociology at the University of Pittsburgh (1985).
I am the author of over 80 articles, publications, and presentations in the area of sex offender recidivism, treatment, and policies regulating sex offenders. In addition to my academic work, I maintain a clinical practice as a licensed clinical social worker evaluating and treating sex offenders. I began my career as a child protection social worker, and have extensive experience working with both victims of sexual violence and sexual offenders. I have qualified to testify as an expert in at least 12 judicial proceedings involving sex offenders. I have testified by invitation before four state legislatures concerning sex offender legislation. I am currently engaged in several research projects funded by the National Institute of Justice regarding sex offender registration, and also serve on the editorial board of “Sexual Abuse: Journal of Research and Treatment.” My curriculum vitae, including a list of my published work, is attached as Exhibit A.
2. The Michigan Registry
As of June 2011, the National Center for Missing and Exploited Children reported a total of 739,853 registered sex offenders (RSOs) across the 50 states, the District of Columbia, and six U.S. territories. Of this total, approximately 42% (308,388) came from five states: California (106,216), Texas (66,587), Florida (55,999), Michigan (47,329), and New York (32,257). (California removes from its total those offenders who are incarcerated, deported, or have moved to another state.) Michigan is, therefore, the fourth largest state registry in the U.S.
3. Overview of Sex Offender Registration and Notification (SORN) Policies
A. History of SORN Laws
Federal SORN policies began in 1994 with the passage of the Jacob Wetterling Act, which required all 50 states to create procedures for tracking the addresses of convicted sex offenders. These registries were initially intended for law enforcement purposes to assist with the identification and apprehension of suspects. In 1996, the Wetterling Act was amended to include “Megan’s Law,” allowing states to disclose registry information to the public. In 2006, the Adam
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Walsh Act (AWA) was passed, again revising federal guidelines and requiring states to comply with new standards for the frequency and duration of registration for sex offenders based on a tiering system tied to the offense of conviction. In 2011, Michigan became one of just 16 states compliant with federal AWA guidelines. As of today, the majority of states have not complied due to concerns about the costs and efficiency of federal requirements.
B. Offense-based versus Risk-based Classification Schemes
Though federal guidelines exist, registry laws are administered by individual states. Some states include all individuals convicted of a sex crime on their public registries, and some disclose information only about those who appear to be high risk. Some states classify risk based strictly on the conviction. Statutorily-based sex offender designations cover a wide and diverse spectrum of behavior patterns, and may obscure important distinctions that affect a given offender’s public safety risk. Other jurisdictions have adopted more refined approaches (e.g., using empirically-derived risk assessment methods) to assist in distinguishing the most dangerous offenders and creating restrictions and monitoring consistent with an offender’s assessed threat to the community.
Empirically validated risk assessment stands in stark contrast to the offense-based classification system required by the Adam Walsh Act. Whereas actuarial assessment procedures evaluate research-based risk factors and screen offenders into relative risk categories, offensebased schemes like the AWA (used in Michigan) classify offenders based only on the purported severity of the offense. Offense-based categories inflate risk in many cases, but will also underestimate the risk of offenders who pled down to lesser offenses. The result of offense-based categories is that the public’s and law enforcement’s ability to identify sexually dangerous persons is significantly diluted.
Recent studies show that the federally-mandated system of classification – based on the categories of offenses listed in the Adam Walsh Act (AWA) – fail to distinguish between registered offenders who present significant threats to public safety and those who present lower risk. For instance, in New York, AWA tiers did a poor job of identifying sexual recidivists. In fact, lower-tiered individuals had higher recidivism rates than those who were assigned into ostensibly higher-risk tiers. Empirically-derived risk factors, in contrast, were better able to predict recidivism than were the AWA “tiered” categories of offenses. (Freeman & Sandler, 2009.) In Florida, AWA Tier 3 offenders had lower recidivism rates and lower actuarial risk assessment scores than Tier 2 offenders (report in progress).
Research has also suggested a potential “net-widening” effect of implementing the AWA-mandated classification system, which places a significant majority of registrants into the highest category of offenders, contradicting evidence suggesting that the highest risk of sexual re-offense is concentrated among a much smaller group of offenders. (A. J. Harris, LobanovRostovsky, & Levenson, 2010.)
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C. Impact of SORN on Sex Offense Recidivism
At this time, several empirical studies have been conducted on the efficacy of SORN laws and policies. These include five group comparison studies (Adkins, Huff, & Stageberg, 2000; Duwe & Donnay, 2008; Schram & Milloy, 1995; Zevitz, 2006; Zgoba, Witt, Dalessandro, & Veysey, 2009) and six trend analysis studies (Letourneau, Levenson, Bandyopadhyay, Sinha, & Armstrong, in press; Prescott & Rockoff, 2008; Sandler, Freeman, & Socia, 2008; Vasquez, Maddan, & Walker, 2008; Veysey, Zgoba, & Dalessandro, 2009; Washington State Institute for Public Policy, 2005). These studies have examined the impact of SORN laws on general sex crime rates and/or sex offense recidivism.
The relative scarcity of empirical research is partly due to the recent implementation of these laws and partly due to methodological challenges faced by researchers when conducting sex crime policy analysis. For example, low base rates, the multiple criminal justice policies enacted within short time frames, challenges obtaining reliable recidivism data, and the need for long follow-up periods all contribute to the complexity of understanding the impact of these laws. Furthermore, each state’s SORN policy is idiosyncratic, subjecting different types of offenders to a variety of registration and notification requirements. The variability in research methodologies and SORN policy characteristics likely accounts for the varied results reported across the studies.
One thing is clear, however: Most studies reveal no significant reductions in sex crime rates that can be attributed to SORN laws and policies. The two studies that have detected reductions in sex crime recidivism as a result of SORN were conducted in Minnesota and Washington (Duwe & Donnay, 2008; Washington State Institute for Public Policy, 2005); both states use risk assessment instruments to classify offenders, and they limit public notification only to those who pose the greatest threat to community safety. An analysis examining over 300,000 sex offenses in 15 states found that while registration with law enforcement appeared to reduce recidivistic sex offenses, public notification did not. (Prescott & Rockoff, 2011.)
D. Residence Restrictions
Sex offender registration often triggers additional requirements related to housing. Residential restriction laws prohibit sex offenders from living near places where children are likely to be found. Some 30 states have laws designating where sex offenders can live. (Meloy, Miller, & Curtis, 2007.) Too abundant to count are municipal housing ordinances passed by cities, towns, and counties. The most common proximity zones are 1,000 to 2,000 feet from venues such as schools, parks, playgrounds, and daycare centers. Some laws include other facilities such as arcades, amusement parks, movie theaters, youth sports facilities, school bus stops, and libraries. (Meloy, Miller, & Curtis, 2008.)
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Residence restrictions are based on the seemingly logical premise that by requiring child molesters to live far from places where children congregate, repeat sex crimes can be prevented. The first problem, however, is that most SORN provisions apply to all sex offenders, without regard to whether or not the offender poses a danger to children. Moreover, the best current research finds no support for the hypothesis that sex offenders who live closer to child-oriented settings are more likely to reoffend.
In fact, the empirical research indicates that where sex offenders live is not a significant contributing factor to reoffending behavior. Zandbergen, Levenson and Hart (2010) compared the residential proximity of sexual recidivists and non-recidivists to schools and daycares in Florida. Those who lived within 1,000, 1,500, or 2,500 feet of schools or daycare centers did not reoffend more frequently than those who lived farther away. There was no significant correlation between sexual recidivism and the number of feet the offender lived from a school. The two groups were matched on relevant risk factors (prior arrests, age, marital status, predator status). The authors of the study concluded that proximity measures were not significant predictors of recidivism.
Similarly, in Colorado, the addresses of sex offender recidivists and non-recidivists were found to be distributed randomly throughout the geographical area, with no evidence that recidivists lived closer to schools and daycare centers. (Colorado Department of Public Safety, 2004.)
In Jacksonville, Florida, researchers investigated the effects of a 2,500 foot residence restriction ordinance and found no reduction in sex crime rates and sex offense recidivism over time. (Nobles, Levenson, & Youstin, in press.) The Iowa Department of Criminal and Juvenile Justice Planning studied the effect of Iowa’s 2,000 foot residence restrictions law that went into effect in August of 2005 and did not observe a downward trend in the number of sexual charges over time following the passage of the law. (Blood, Watson, & Stageberg, 2008.) In fact, sex crime arrests increased steadily each year (with 913 charges filed during the year prior to implementation, 928 charges filed the subsequent year, and 1,095 the year after that.) The authors concluded that Iowa’s residence law “does not seem to have led to fewer charges or convictions, indicating that there probably have not been fewer child victims.” (Blood, et al., 2008, p. 10.)
In Minnesota, an analysis of 224 repeat sex offenders led the authors to conclude that residential restriction laws would not have prevented even one re-offense. (Duwe, Donnay, & Tewksbury, 2008.) Most of the cases involving children were committed not by strangers but by registered sex offenders who were well acquainted with their victims, such as parents, caretakers, paramours of the mother, babysitters, or friends of the family. The repeat offender was a neighbor of the victim in only about four percent of the cases. Predatory assaults that occurred within a mile of the offender’s residence typically involved adult victims. Although some of the offenders established relationships with minor victims within 2,500 feet of their homes, none of the crimes took place in or near a school, daycare center, or park. Current
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research shows that sex offenders do not appear to abuse children because they live near schools, but rather they take advantage of opportunities to cultivate relationships with children and their families in order for sexual abuse to take place. (Duwe, et al., 2008.)
Similarly, the majority (67%) of New Jersey offenders met victims in private locations while relatively few (4.4%) met victims in the types of locations designated as off-limits by residential restriction laws. (Colombino, Mercado, Levenson, & Jeglic, 2011.) Noteworthy is that sex offenders rarely encountered their victims in public locations where children congregate, and therefore policies emphasizing residential proximity to schools, parks, and other “child-friendly” locations ignore the empirical reality of sexual abuse patterns.
Residential restrictions also create barriers to offender reintegration into society. As restricted zones increase, so do transience, homelessness, and reduced employment opportunities for offenders. (Levenson, 2008.) Many sex offenders reported that housing restriction laws forced them to relocate; that they were unable to return to their homes after incarceration; that they were not permitted to live with family members; or that they experienced a landlord refusing to rent to them or to renew a lease. (Levenson, 2008; Levenson & Cotter, 2005a; Levenson & Hern, 2007; Mercado, Alvarez, & Levenson, 2008.) Many indicated that affordable housing is less available due to limits on where they can live, and that they are forced to live farther away from employment, public transportation, social services, and mental health treatment. Young adults seemed to be especially affected by these laws: age was significantly inversely correlated with being unable to live with family and having difficulties securing affordable housing. (Levenson, 2008; Levenson & Hern, 2007.) Family members of registered sex offenders also reported that residential restriction laws created housing disruption for them; larger restricted zones led to an increased chance of a housing crisis. (Levenson & Tewksbury, 2009.)
A growing body of evidence illustrates how residential restrictions profoundly reduce housing options for sex offenders. In Orlando, Florida, a study found that 99 percent of all residential dwellings are located within 2,500 feet of schools, parks, daycare centers, or school bus stops. (Zandbergen & Hart, 2006.) The vast majority of residential territory in Nebraska and New Jersey is also located within 2,500 feet of a school. (Bruell, Swatt, & Sample, 2008; Chajewski & Mercado, 2009; Zgoba, Levenson, & McKee, 2009.) Affordable housing is especially affected, since it tends to be in more densely populated areas, where homes are in closer proximity to places frequented by children.
Of nearly one million residential parcels studied in Miami-Dade County, Florida, only about 4% of residential units were outside the overlapping state and local restricted zones in effect, and only 1% had a monthly housing cost of $1,250 or less. (Zandbergen & Hart, 2009.) A study in Nebraska showed that average home values were significantly higher outside of the restricted zone of 2,000 feet, making it difficult for sex offenders to find affordable housing. (Bruell, et al., 2008.) Ohio showed the same pattern. (Red Bird, 2009.)
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When prisoners are released from incarceration, they commonly seek housing with relatives, but strict residence laws can eliminate such options for sex offenders. Unable to reside with family, and without the financial resources to pay security deposits and rent payments, some sex offenders face homelessness. Importantly, housing instability is consistently associated with higher criminal recidivism and absconding. In Georgia, every time a parolee moved, the risk of re-arrest increased by 25%. (Meredith, Speir, & Johnson, 2007.) Residential instability was a robust predictor of absconding in a study of California parolees. (Williams, McShane, & Dolny, 2000.)
In a national sample of 2,030 offenders, those who moved multiple times during probation were almost twice as likely as stable probationers to have some sort of disciplinary hearing. (Schulenberg, 2007.) In New Zealand, unstable housing, unemployment, and limited social support were found to predict sexual recidivism. (Willis & Grace, 2009; Willis & Grace, 2008.) Some prosecutors and victim advocates have publicly denounced residence restrictions, cautioning that the transience created by housing restrictions undermines the validity of sex offender registries and makes it more difficult to track and supervise sex offenders. (Iowa County Attorneys Association, 2006; NAESV, 2006.)
4. Collateral Consequences of SORN Laws
The problems of re-entry commonly faced by other criminal offenders are exacerbated for registered sex offenders. The stigma of sex offender registration and community notification is well documented, as are the ways in which they can impede community re-entry and adjustment. (Levenson & Cotter, 2005b; Levenson, D'Amora, & Hern, 2007; Mercado, et al., 2008; Sample & Streveler, 2003; Tewksbury, 2004, 2005; Tewksbury & Lees, 2006; Zevitz & Farkas, 2000.) Sex offenders have been surveyed in Florida, Indiana, Connecticut, New Jersey, Wisconsin, Oklahoma, Kansas, and Kentucky. They consistently reported adverse consequences such as unemployment, relationship loss, threats, harassment, physical assault, and property damage as well as psychological symptoms such as shame, embarrassment, depression, or hopelessness as result of public disclosure. Housing difficulties are commonly noted by registered sex offenders, and the proliferation of residential restriction laws compounds this problem. Obstacles to employment include the public disclosure of information (including employer address) on the registry, and restrictions prohibiting sex offenders from working within close proximity to a school.
Social stability and support increase the likelihood of successful reintegration for criminal offenders, and public policies that create obstacles to community reentry may compromise public safety. Stable employment and supportive relationships lead to lower recidivism rates for sex offenders. (Colorado Department of Public Safety, 2004; Kruttschnitt, Uggen, & Shelton, 2000.) It is well established that the stigma of even a non-sex offense felony conviction can inhibit participation in pro-social roles such as employment, education, parenting, and property ownership. (Tewksbury & Lees, 2007; Uggen, Manza, & Behrens, 2004.) Uggen et al. 2004
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highlighted that self-concept, civic engagement, and stability are essential to an offender’s identity as a conforming citizen and therefore to desistance from crime. Obstacles to reintegration reduce stakes in conformity and increase the likelihood that a criminal offender will resume a life of crime. (Hirshi, 1969; Travis, 2005.) SORN laws and policies interfere with employment, housing, social support, and engagement in pro-social activities, potentially and paradoxically reducing the deterrent effect intended by these laws.
The impact of SORN laws is also felt by the families of convicted sex offenders. Levenson and Tewksbury (2009) found that employment problems for registered sex offenders (RSOs) emerged as the most pressing issue identified by family members, followed by concerns about housing. The likelihood of housing disruption was higher for families of RSOs to whom residential restrictions applied; larger buffer distances were correlated with increased housing crises. Those who lived with an RSO were more likely to experience threats and harassment by neighbors. Children of RSOs were also reported to experience adverse consequences. More than half (58%) said they were treated differently by other children at school, or that their friendships had been affected (78%) by public notification. More than half said that the children of an RSO had experienced ridicule, teasing, depression, anxiety, fear, or anger. (Levenson & Tewksbury, 2009.) Family members of RSOs experienced high levels of social isolation, fear, shame, property damage, and forced residential relocation. Perceived stress was significantly higher for those who are of lower economic means, who feel isolated, have high levels of fear and shame/embarrassment, or were forced to move. (Tewksbury & Levenson, 2009.)
In another survey, several common themes emerged. Many family members spoke of persistent feelings of depression, hopelessness, and frustration as they adjusted to life with a registered sex offender. Many reported that housing and employment were disrupted by limitations imposed by the RSO’s probation or registration requirements, resulting in economic hardships for family members. Family members felt they were subject to intense scrutiny and intrusion by parole or law enforcement agents, and that their right to privacy was severely affected by public notification procedures, leading to a great sense of shame and stigma. Many reported feeling “overwhelmed and demoralized,” struggling to cope on a day-to-day basis. Some noted that reentry assistance policies (e.g., the Second Chance Act) exclude sex offenders from receiving services. Stress for family members can impede the important role they play in facilitating successful reentry. (Farkas & Miller, 2007.)
5. Risk and Recidivism
A. Overview
Some sex offenders are going to reoffend, and steps should be taken to prevent that from happening. But according to the U.S. Department of Justice, only 5.3% of sex offenders released from prison were re-arrested for a new sex crime within three years. (Bureau of Justice Statistics, 2003.) Over four to six years, only about 14% of more than 20,000 sex offenders (in an interna-
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tional sample) were re-arrested for a new sex offense. (Hanson & Bussiere, 1998; Hanson & Morton-Bourgon, 2005.) A 24% recidivism rate was observed over 15 years (A. J. R. Harris & Hanson, 2004), and 27% were re-arrested over 20 years. (Hanson, Morton, & Harris, 2003.) (Note that these figures are for re-arrest rates, not re-conviction rates.) Thus, after two decades, nearly three-quarters of convicted sex offenders have not been re-arrested for a new sex crime.
The vast majority of new sexual assaults are not committed by registered sex offenders. (Bureau of Justice Statistics, 2003; Sandler, et al., 2008.) In fact, in New York, 95% of all arrests for sexual offenses are of offenders without a prior sexual offense conviction (i.e., offenders who are not on the registry at the time of their arrests). (Sandler, et al., 2008.) It is true that arrest data naturally underestimate true re-offense rates, because some crimes are never detected or reported to authorities. (Arrest data can also overstate re-offense rates, as some arrestees are not guilty.) The available research suggests, however, that after two decades the great majority of convicted sex offenders have not re-offended.
Risk and recidivism vary with the presence of risk factors. Risk assessment procedures consistently have been shown to improve the accuracy of predictions by setting thresholds for decision-making and by standardizing factors that professionals readily recognize as key diagnostic indicators. This process, known as the actuarial method, estimates the likelihood of a certain outcome by referring to the known (actual) outcomes of individuals with similar characteristics. Actuarial assessment is used in the insurance industry to adjust premiums and its uses are growing in a variety of other disciplines, including criminal justice. The actuarial method cannot predict with certainty that a given individual will behave in a particular way. It can, however, provide probability data with which to inform one’s expectations regarding an individual and to screen offenders into relative risk categories. When sexual violence risk assessment procedures have been directly compared, empirically derived risk scales were better able to predict recidivism (r = .61) than clinical judgment alone (r = .40) or empirically guided assessments (r = .41). (Hanson & Morton-Bourgon, 2004.) As well, actuarial risk assessment has demonstrated significantly better utility in identifying recidivists than offense-based procedures.
The most commonly used and most well-researched risk assessment instrument, the Static-99 (Hanson & Thornton, 1999), is easily scored by anyone trained to do so (e.g., probation agents, clinicians, case managers) and has demonstrated good predictive accuracy in multiple validation studies over the past several years. This instrument is used nationwide in all states that have sex offender civil commitment laws. Though not perfect, it offers a firm scientific basis for assessing the likelihood that a convicted sex offender will re-offend and assigning that individual to a risk category. Of additional interest with regard to AWA’s newly enacted lifetime registration and supervision requirements is that the Static-99 scoring guidelines state that “the expected offense recidivism rate should be reduced by about half if the offender has five to ten years of offense-free behavior in the community. … As offenders successfully live in the community without incurring new offenses, their recidivism risk declines.” (Static 99, p. 59.)
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Without doubt, some registered sex offenders are pedophilic or sexually violent and are likely to pose a threat to public safety. For instance, a more extensive criminal history places an offender at increased risk for recidivism, as does younger age, a preference for male child victims, and a history of victimizing strangers. (Hanson & Bussiere, 1998; A. J. R. Harris & Hanson, 2004; A. J. R. Harris, Phenix, Hanson, & Thornton, 2003.) Nationwide, about 14% of all registered sex offenders are designated by states as high risk or sexually violent predators. However, sex offenders are more likely to commit subsequent non-sexual crimes than to reoffend sexually. (Bureau of Justice Statistics, 2003; Hanson & Bussiere, 1998; Sample & Bray, 2003, 2006) Moreover, the vast majority of new sexual assaults are not committed by registered sex offenders, but by first-time sex offenders. (Bureau of Justice Statistics, 2003.) Sexually motivated homicides have inspired most of our modern sex crime policies, but sex offenders are among the least likely criminals to murder their victims. (Sample, 2006.)
B. Stranger Danger
The myth of “stranger danger” had led to policies designed to prevent predatory sexual assaults against children, which actually represents a very small percentage of sex crimes. Community protection policies tend to be passed in response to highly publicized sex crimes which often involve abduction and sexually motivated homicide. These types of offenses, however, are exceedingly rare. According to the Office of Juvenile Justice and Delinquency Prevention, there are about 115 cases nationwide in which children are abducted by strangers in a given year. (U.S. Department of Justice, 2002.) The most common types of child sexual abuse cases involve perpetrators who are well known to their victims. According to the Department of Justice, in 93% of sexual molestation cases the child is abused by a relative or family acquaintance. In fact, policies like community notification and residence restrictions may give parents a false sense of security by their implication that if we know where convicted sex offenders live, or if we banish them from our neighborhoods, children will be safe. The disturbing reality is that sexually abused children are victimized by family members in 34% of cases, and by acquaintances in 59% of cases. (Bureau of Justice Statistics, 2000.) About 40% of sexual assaults take place in the victim’s own home, and 20% take place in the home of a friend, neighbor, or relative. (Bureau of Justice Statistics, 1997.) Only 7% of child sex abusers are strangers to their victims. (Berliner, Schram, Miller, & Milloy, 1995; Bureau of Justice Statistics, 2002.) Less than 1% of all murders involve sexual assault, and the prevalence of sexual murders has declined substantially since the 1970’s. (Bureau of Justice Statistics, 1997.) Although cases involving children receive the most media coverage, 75% of sexual murder victims are over the age of 18. (Bureau of Justice Statistics, 1997.)
C. Housing, Employment, and Family Support as Risk Factors for Recidivism
Practical, legal, and social consequences of crime are more severe for sex offenders than for other criminals. (Lees & Tewksbury, 2006; Uggen, Manza, & Thompson, 2006.) Hardships related to housing and employment, social stigma, and relationship problems can lead to higher
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recidivism rates. (Lees & Tewksbury, 2006.) Conversely, employment, social bonds, and housing stability increase the likelihood of successful reintegration for all criminal offenders. (Kruttschnitt, et al., 2000; Petersilia, 2003; Uggen, 2002; Uggen, et al., 2004; Willis & Grace, 2009.) Therefore, social policies which ostracize and disrupt the stability of sex offenders are unlikely to be in the best interest of public safety.
D. Lifetime Registration and Risk/Recidivism
The recent trend toward lifetime registration for all sex offenders contradicts empirical evidence. The result of this movement is a growing number of sex offender registrants which requires increased fiscal and personnel resources to update technology, enforce registration rules, and incarcerate violators. Research indicates that risk for sexual re-offending is reduced by half once the offender has spent 5-10 years offense-free in the community, and that risk continues to decline as time offense-free in the community lengthens. (A. J. R. Harris, et al., 2003.) Furthermore, risk for sexual recidivism declines with advancing age, meaning that the aging sex offender population is likely to pose less of a threat to public safety. There is no empirical evidence to support the notion that more frequent registration check-ins lower recidivism, nor is there evidence to conclude that additional reporting requirements (e.g., email addresses, employment information) reduce recidivism. Requiring registration for 25 years to life is therefore both inefficient and unnecessary, based on empirical research.
E. Effectiveness of Treatment in Reducing Recidivism
Sex offender treatment has been viewed with skepticism, and some studies have failed to detect significant differences in recidivism rates between treated and untreated offenders. (Furby, Weinrott, & Blackshaw, 1989; Hanson, Broom, & Stephenson, 2004; Marques, Wiederanders, Day, Nelson, & van Ommeren, 2005.) Other studies, however, have shown that cognitive behavioral therapy can diminish sex offense recidivism by about 40%. (Hanson, et al., 2002; Losel & Schmucker, 2005.) Although treatment does not guarantee success in every case, many sex offenders do benefit from therapy, and sex offenders who successfully complete treatment programs are re-arrested less often than those who do not. (Marques, et al., 2005, p. 97.) Collaborative approaches to sex offender management, supervision, and rehabilitation have been successful in reducing sex offense recidivism. (English, Pullen, & Jones, 1996, 1998.)
Collaborative risk management approaches evaluate and address individual offender’s risks and needs, reinforce their strengths, and facilitate support systems. (English, et al., 1996, 1998; Ward & Brown, 2004.) By working together, treatment providers and probation officers can apply restrictions and interventions relevant to a particular offender’s patterns and risk factors. At the same time, the team can facilitate a plan that encourages engagement in pro-social activities and minimizes obstacles to reintegration.
F. Failure to Register as a Risk Factor for Recidivism
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Only four published studies have looked at the relationship between failure to register (FTR) and sex-offense recidivism. The first, conducted by researchers at the Washington State Institute of Public Policy, tracked over 12,000 sex offenders required to register between 1990 and 1999. The proportion of individuals convicted for FTR climbed steadily each year from 5% in 1990 to 18% in 1999. Results indicated that sex offenders with FTR convictions were more likely to be subsequently re-arrested. (Washington State Institute for Public Policy, 2006.) Most of the new convictions, however, were for general crimes (38.5%) and violent activity (15.8%), while sexual recidivism for the FTR group was 4.3%, compared to 2.8% for compliant registrants (statistical significance was not reported). Although the rates of sexual recidivism were slightly higher for those who failed to register, the proportion of offenders who sexually re-offended was very low for both groups, and not substantially different.
Duwe and Donnay (2010) found that FTR has become the most common type of recidivism for sex offenders released from prison in Minnesota. (This may be because FTR is the crime most likely to result in detection.) When analyzing the recidivism outcomes of 1,561 highrisk sex offenders who were required to register, the authors found that 11% had been convicted of FTR. They further reported that FTR did not predict future sexual or general recidivism. Instead, the results indicated only that a FTR conviction significantly increased the likelihood of subsequent FTR arrests. The authors found that FTR offenders were less educated, less likely to have participated in treatment, less violent, less likely to have assaulted victims of different age groups, more likely to be a minority, and more likely to have prior felonies and supervision violations. Overall, the authors concluded that registration noncompliance did not appear to raise the risk for sexual reoffending. (Duwe & Donnay, 2010.)
In South Carolina, a study involving 2,970 registered sex offenders indicated that those who failed to register were not more likely to sexually re-offend than those who cooperated with registration mandates. (Levenson, Letourneau, Armstrong, & Zgoba, 2010.) Specifically, 10% of the sample had registry violation convictions across a follow-up period of approximately six years. No statistically significant differences were found in the sexual recidivism rates for those with an FTR charge (11%) versus obedient registrants (9%). FTR offenders were younger, had more prior non-sexual arrests, were more likely to be non-white, and were less likely to have a minor victim. In regression analyses, FTR did not predict sexual recidivism, although it was associated with non-sexual recidivism. The authors concluded that FTR and sexual offending may represent different constructs, with FTR being related to rule breaking behavior and sexual offending being related to sexual deviance.
A similar study in New Jersey also revealed that FTR was not a significant predictor of sexual recidivism. (Zgoba & Levenson, in press.) Few differences between the groups were detected, but FTR offenders were more likely to have sexually assaulted a stranger and to have adult female victims. These results further refuted the myth of the pedophilic predator who absconds in order to avoid detection. These similar findings offer some common themes that
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inform our understanding of FTR offenders: namely, that they are younger, more versatile criminals who tend not to specialize in the abuse of children.
In a related line of research, other scholars have noted that FTR is not tantamount to absconding. (A.J. Harris & Pattavina, 2009; Levenson & Harris, 2011.) It is doubtful that all sex offenders arrested for FTR are willful violators, as most FTR offenders are easily located and do not appear to have absconded. (Ackerman, Harris, Levenson, & Zgoba, 2011; Duwe & Donnay, 2010; A. J. Harris, Levenson, & Ackerman, under review; Levenson & Harris, 2011; Levenson, et al., 2010.) Some sex offenders may appear to be “missing” due to inadequate or incomplete address information, data entry errors, lag times in updating registry information, unauthorized travel, or homelessness. (A.J. Harris & Pattavina, 2009.) Additionally, some offenders may be confused by complex registration requirements, carelessly disregarding their duty to update information, but remaining in their known locations despite their lapse.
6. Conclusion: What Would an Effective Sex Offender Management System Look Like?
Empirically derived risk assessment models based on factors known to correlate with recidivism should be used to identify sex offenders who pose the greatest threat to public safety. Public registries, if used, should be reserved for high-risk offenders. In this way, the public would be better informed specifically about pedophilic, predatory, repetitive, or violent sex offenders likely to commit new sex offenses. At the same time, collateral consequences could be minimized for lower risk offenders re-entering communities and attempting to become productive, law abiding citizens. Given the dearth of evidence that public notification protects children, prevents recidivism, or improves public safety, lawmakers should consider the unintended consequences of these laws.
In addition to risk-based classification, states should also create a mechanism for sex offenders to earn release from certain registration requirements, such as public notice and residency restrictions. Sex offenders should be permitted to request exemption or de-registration if: (1) they are assessed to pose a low risk to the community based on empirical and actuarial risk factors; (2) they have successfully completed a sex offender treatment program; and (3) they have been living in the community offense-free for at least five years. Such a policy would create evidence-based incentives for law-abiding behavior and would expand opportunities for positive psychosocial adjustment and community re-entry.
Risk-based classification and collaborative risk management evaluates individual offender’s risks and needs, reinforces the offender’s strengths, and facilitates support systems. (English, et al., 1996, 1998; Ward & Brown, 2004.) By working together, treatment providers and probation officers can address an offender’s unique behavior patterns and risk factors. At the same time, the team can facilitate a plan that encourages pro-social activities and minimizes the risks of recidivism.
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Public education and awareness campaigns should highlight the likelihood that children will be abused by someone they know and trust. Parents should be made aware of the signs and symptoms of child sexual abuse and of the common types of grooming patterns used by perpetrators who gain access to victims via their positions of trust or authority. In addition, factual data about the relative rarity of child sex offenses and the low recidivism rates would temper the fear induced by current law and policy. “It does not help the child maltreatment field or the public and policymakers to see child molesters as simply incorrigibly compulsive fiends who cannot be stopped.” (Finkelhor, 2003, p. 1227.) The media play a crucial role in public education and should be enlisted as responsible partners in the dissemination of accurate information. Sensationalistic journalism perpetuates the myths that tend to drive legislative responses, which are then ultimately less likely to accomplish their goals of protecting communities. (Proctor, Badzinski, & Johnson, 2002; Sample, 2001; Sample & Kadleck, 2006; Wright, 2003.)
Enormous fiscal resources are allocated each year for registration and notification, despite the virtual absence of research demonstrating the effectiveness of these policies. While there is little resistance to funding criminal justice initiatives, social services and prevention programs are often discarded first when budgets need to be balanced.
This means that victims of sexual abuse often go without therapy and counseling. Child protective services and foster care programs are often underfunded and poorly staffed. Early maltreatment can create a cycle of abuse in which individuals grow up to repeat behavior witnessed and learned in childhood. Many sex offenders have experienced such problems in their own families, including physical abuse, neglect, criminality, and substance abuse. (Seghorn, Prentky, & Boucher, 1987.) Though childhood sexual abuse alone is a weak predictor of future sexual violence, early sexual abuse combined with other developmental and family problems contribute to the development of abusive behaviors. (Hanson & Bussiere, 1998; Knight & Prentky, 1990.) Funding social services for abused children is an important step in preventing future sexual violence in our communities, but is often ignored in favor of punitive criminal justice responses.
Pursuant to 28 U.S.C. § 1746, I state under penalty of perjury that the above statements are true and correct to the best of my knowledge, information, and belief.

Dated: January 13, 2012

_____________________ Jill S. Levenson, Ph.D.

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2:12-cv-11194-RHC-DRG Doc # 1-10 Filed 03/16/12 Pg 22 of 40 Pg ID 129 Zevitz, R. G. (2006). Sex offender community notification: Its role in recidivism and offender
reintegration. Criminal Justice Studies, 19(2), 193-208. Zgoba, K., Levenson, J. S., & McKee, T. (2009). Examining the Impact of Sex Offender
Residence Restrictions on Housing Availability. Criminal Justice Policy Review, 20(1), 91-110. Zgoba, K., Witt, P., Dalessandro, M., & Veysey, B. (2009). Megan’s Law: Assessing the Practical and Monetary Efficacy. Retrieved from http://www.ncjrs.gov/pdffiles1/nij/grants/225370.pdf Zgoba, K., & Levenson, J. S. (in press). Failure to Register as a Predictor of Sex Offense Recidivism: The Big Bad Wolf or a Red Herring? Sexual Abuse: A Journal of Research and Treatment.
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ATTACHMENT A CURRICULUM VITAE

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Curriculum Vitae JILL S. LEVENSON, Ph.D., LCSW

EDUCATION: Ph.D., Social Welfare, 2003 Florida International University, Miami, FL. MSW, Clinical Social Work, 1987 University of Maryland, School of Social Work, Baltimore, MD. BA, Sociology, 1985 University of Pittsburgh, Pittsburgh, PA.

ACADEMIC POSITIONS
September 2004 - present: LYNN UNIVERSITY, BOCA RATON, FLORIDA College of Liberal Education, Department of Psychology
Associate Professor (2008-present) Assistant Professor and Human Services Department Chair (2004-2008)

May 1994-August 2004: FLORIDA INTERNATIONAL UNIVERSITY, MIAMI, FLORIDA

Instructor, School of Social Work (8/99-8/04) Instructor, Professional Development Center (Child Protection Training Institute) (5/94 - 6/99)

PROFESSIONAL CLINICAL EXPERIENCE

5/94-present 11/99-12/04
4/91-4/94
11/90-2/91 10/89-9/90 9/87-6/89

OAKBROOK COUNSELING CENTER, P.A., Ft. Lauderdale, FL. Clinical Social Worker, Clinical Supervisor & Consultant, private practice. CHRYSALIS CENTER, INC., Ft. Lauderdale, FL. Clinical Consultant, Clinical Supervisor, & Field InstructorFKLOGUHQ¶VPHQWDOKHDOWK clinic. FAMILY SERVICE AGENCY, INC., Ft. Lauderdale, FL. Clinical Supervisor, Field Instructor, & Clinical Social Worker, outpatient psychotherapy center. KIDS IN DISTRESS, INC., Ft. Lauderdale, FL. Social Worker, therapeutic preschool program. CHILD PROTECTION TEAM OF BROWARD COUNTY, FL. Social Worker, child protective services. BALTIMORE COUNTY DEPT. OF SOCIAL SERVICES, Baltimore, MD. Social Worker, child protective services & foster care services.

LICENSURE & PROFESSIONAL REGULATION x Licensed Clinical Social Worker, Florida, #SW2659 x Qualified Supervisor For Licensure, Florida Department of Health x Qualified sex offender treatment provider, Florida Department of Corrections

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PUBLICATIONS
1. Levenson, J. S., Sandler, J. C., & Freeman, N. J. (under review). Do Failure to Register Laws Fail to Increase Public Safety? An Examination of Risk Factors and Sex Offense Recidivism in New York State.
2. Levenson, J.S. (in press). Beyond redemption? Myths and facts about sex offenders. In R. Bohm and J. Walker (Eds.) Demystifying crime and justice, 2nd edition. Oxford University Press.
3. Levenson, J.S. (in press). Turning knowledge into practice: Future directions in sex offender management policy. In Hoberman and Phenix (Eds.) Sexual Offenders: Diagnosis, risk assessment, and management. Guilford Press.
4. Levenson, J.S. (in press). Exhibitionism: A Case Study,Q:2¶'RQRKXH(G.) Case Studies in Sexual Deviance. Guilford Press.
5. Nobles, M. R., Levenson, J. S., & Youstin, T. J. (in press). Effectiveness of Residence Restrictions in Preventing Sex Offense Recidivism. Crime and Delinquency.
6. Levenson, J. S., & Harris, A. J. (2011). 100,000 Sex Offenders 0LVVLQJ«2U$UH7KH\"'HFRQVWUXFWLRQ of an Urban Legend. Criminal Justice Policy Review.
7. Zgoba, K., & Levenson, J. S. (2011). Failure to Register as a Predictor of Sex Offense Recidivism: The Big Bad Wolf or a Red Herring? Sexual Abuse: A Journal of Research and Treatment.
8. Levenson, J. S., Tewksbury, R., & Giorgio-Miller, J. (2011). Experiences of nonoffending parents and caretakers in child sexual abuse cases. Southwest Journal of Criminal Justice 8(2).
9. Ackerman, A., Harris, A.J., Levenson, J.S., Zgoba, K. (2011). Who are the people in your neighborhood? A descriptive analysis of individuals on public sex offender registries. International Journal of Law and Psychiatry 34, 149-159.
10. Colombino, N., Mercado, C.C., Levenson, J.S., & Jeglic, E. (2011). Preventing sexual violence: Can examination of offense location inform sex crime policy? International Journal of Law and Psychiatry.
11. Levenson, J.S. (2011). Sex offender policies in an era of zero tolerance. What does effectiveness really mean? Criminology & Public Policy, 10(2), p. 229-233.
12. Jeglic, E., Mercado, C. C., & Levenson, J. S. (2011). The Prevalence and Correlates of Depression and Hopelessness among Sex Offenders Subject to Community Notification and Residence Restriction Legislation. American Journal of Criminal Justice. DOI: 10.1007/s12103-010-9096-9
13. Letourneau, E. & Levenson, J.S. (2011). Preventing sexual abuse: Policy and practice. In Myers, D. (Ed.), APSAC Handbook of Child Maltreatment, p. 307-322. Sage Publications.
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14. Levenson, J. S. (2011). Community protection from sexual violence: Intended and unintended outcomes of U.S. policies. In D. P. Boer, L. A. Craig, R. Eher, M. H. Miner & F. Pfafflin (Eds.), International Perspectives on the Assessment and Treatment of Sexual Offenders: Theory, Practice and Research. West Sussex: Wiley-Blackwell.
15. Levenson, J. S. (2011). But I didn't do it! Ethical treatment of sex offenders in denial. Sexual Abuse: Journal of Research and Treatment 23(3).
16. Prescott, D. & Levenson, J. S. (2010). Sex offender treatment is not punishment. Journal of Sexual Aggression. DOI: 10.1080/13552600.2010.483819
17. Willis, G.M., Levenson, J.S, & Ward, T. (2010). Desistance and attitudes towards sex offenders: facilitation or hindrance? Journal of Family Violence, 25, 545-556.
18. Levenson, J. S., Letourneau, E., Armstrong, K., & Zgoba, K. (2010). Failure to register as a Sex Offender: Is it associated with recidivism? Justice Quarterly, 27(3) 305-331.
19. Zandbergen, P. A., Levenson, J. S., & Hart, T. (2010). Residential proximity to schools and daycares: An empirical analysis of sex offense recidivism. Criminal Justice and Behavior, 37(5), 482-502.
20. Harris, A. J., Lobanov-Rostovsky, C., & Levenson, J. S. (2010). Widening the Net: The Effects of Transitioning to the Adam Walsh Act Classification System. Criminal Justice and Behavior, 37(5), 503519.
21. Letourneau, E., Levenson, J. S., Bandyopadhyay, D., Armstrong, K., & Sinha, D. (2010). Effects of 6RXWK&DUROLQD¶V6H[2IIHQGHU5HJLVWUDWLRQDQG1RWLILFDWLRQ3ROLF\RQ'HWHUUHQFHRI$GXOW6H[&ULPHV Criminal Justice and Behavior, 37(5), 537-552.
22. Levenson, J. S., Fortney, T., & Baker, J. N. (2010). Views of Sexual Abuse Professionals about Sex Offender Notification Policies. International Journal of Offender Therapy and Comparative Criminology 54(2), 150-168.
23. /HYHQVRQ-63UHVFRWW' '¶$PRUD'2010). Sex Offender Treatment: Consumer Satisfaction and Engagement in Therapy. International Journal of Offender Therapy and Comparative Criminology 54(3).
24. Letourneau, E., Levenson, J.S., Bandyopadhyay, D., Armstrong, K., & Sinha, D. (2010). The Effects of Public Registration on Judicial Decisions. Criminal Justice Review.
25. Letourneau, E., Levenson, J.S., Bandyopadhyay, D., Sinha, D., & Armstrong, K. (2010). Effects of South Carolina's sex offender registration and notification policy on adult recidivism. Criminal Justice Policy Review.
26. Levenson, J. S. (2010). Sex offender residence restrictions and community re-entry. In A. Schlank (Ed.), The Sexual Predator: Law, Policy, Evaluation and Treatment (Vol. 4). Kingston, NJ: Civic Research Institute.
27. Levenson, J. S. (2009). Sex Offender Polygraph Examination: An Evidence-Based Case Management Tool for Social Workers. Journal of Evidence Based Social Work, 6, 361-375.
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2:12-cv-11194-RHC-DRG Doc # 1-10 Filed 03/16/12 Pg 27 of 40 Pg ID 134 28. Chaffin, M., Levenson, J.S., Letourneau, E., & Stern, P. (2009). How safe are trick-or-treaters? An
analysis of sex crimes on Halloween. Sexual Abuse: Journal of Research & Treatment 21(3).
29. Tewksbury, R., & Levenson, J. S. (2009). Stress experiences of family members of registered sex offenders. Behavioral Sciences and the Law, 27(4), 611-626.
30. Doren, D. & Levenson, J.S. (2009). Diagnostic Reliability and Sex Offender Civil Commitment Evaluations: A Reply to Wollert. Sex Offender Treatment 4(1).
31. Levenson, J.S. (2009). Sex offender residence restrictions. In R. Wright (Ed.) Sex Offender Policies. New York: Springer Publishing Company.
32. Fortney, T., Baker, J. N., & Levenson, J. S. (2009$/RRNLQWKH0LUURU6H[XDO$EXVH3URIHVVLRQDOV¶ Perceptions about Sex Offenders. Victims and Offenders, 4(1), 42-57.
33. Levenson, J. S., & Tewksbury, R. (2009). Collateral damage: Family members of registered sex offenders. American Journal of Criminal Justice 34 (1/2) 54-68.
34. Zgoba, K., Levenson, J.S. & McKee, T. (2009). Examining the Impact of Sex Offender Residence Restrictions on Housing Availability. Criminal Justice Policy Review, 20(1).
35. Levenson, J.S., Macgowan, M.J., Morin, J.W., & Cotter, L.P. (2009). Perceptions of sex offenders about treatment: Satisfaction and engagement in group therapy. Sexual Abuse: Journal of Research & Treatment 21(1).
36. Levenson, J.S. & Prescott, D. (2009). Treatment experiences of civilly committed sex offenders: A consumer satisfaction survey. Sexual Abuse: Journal of Research & Treatment 21(1).
37. Levenson, J.S. (2009). Sex offense recidivism, risk assessment, and the Adam Walsh Act. Sex Offender Law Report, 10(1).
38. Katz, S.M, Levenson, J.S., & Ackerman, A.R. (2008). Myths and facts about sexual violence: Public perceptions and implications for prevention. Journal of Criminal Justice and Popular Culture, 15(3).
39. Mercado, C.C., Alvarez, S., & Levenson, J.S. (2008). The Impact of Specialized Sex Offender Legislation on Community Re-Entry. Sexual Abuse: Journal of Research & Treatment, 20(2).
40. Levenson, J.S. (2008). Collateral consequences of sex offender residence restrictions. Criminal Justice Studies 21(2), 153-166.
41. Levenson, J.S., Becker, J., & Morin, J.W. (2008). The relationship between victim age and gender crossover among sex offenders. Sexual Abuse: Journal of research and treatment, 20(1), 43-60.
42. Zgoba, K. & Levenson, J.S. (2008). Variations in the Recidivism of Treated and Non-Treated Sexual Offenders in New Jersey: An Examination of Three Time Frames. Victims and Offenders, 3(1), 10-30.
43. Morin, J.W. & Levenson, J.S. (2008). Exhibitionism: Assessment and Treatment. In D.R. Laws & W. 2¶'RQRKXH (Eds) Sexual Deviance. Guilford Press, p. 76-107.
!"#""#"$!!

2:12-cv-11194-RHC-DRG Doc # 1-10 Filed 03/16/12 Pg 28 of 40 Pg ID 135 44. Levenson, J.S. (2008). Risk assessment of criminal justice populations. In Thomlison, B. & Corcoran,
K. (Eds). Evidence-Based Practice: A Student Manual for Criminal Justice and Social Work Internships. Oxford Press.
45. Levenson, J.S. (2007). Sex offender civil commitment. In B. Cutler (Ed.) Encyclopedia of Psychology and Law. Sage Publications.
46. Levenson, J.S. (2007). Sex offender community notification. In B. Cutler (Ed.) Encyclopedia of Psychology and Law. Sage Publications.
47. Levenson, J.S., Zgoba, K., & Tewksbury, R. (2007). Sex Offender Residence Restrictions: Sensible Crime Policy or Flawed Logic? Federal Probation, 71(3), 2-9.
48. Tewksbury, R. & Levenson, J.S. (2007). When Evidence is Ignored: Residential Restrictions for Sex Offenders. Corrections Today, December 2007, p. 54-57.
49. Brannon, Y., Levenson, J.S., Fortney, T., & Baker, J. (2007). Attitudes about Community Notification: A Comparison of Sexual Offenders and the Non-offending Public. Sexual Abuse: Journal of research and treatment 19(4) 369-379.
50. Levenson, J.S. (2007). The new scarlet letter: Sex offender policies in the 21st century. In D. Prescott, Ed., Applying Knowledge to Practice: Challenges in the Treatment and Supervision of Sexual Abusers, p. 21-41. Wood and Barnes Publishing.
51. Levenson, J.S. & Prescott, D. (2007). Considerations in evaluating the effectiveness of sex offender treatment. In D. Prescott Applying Knowledge to Practice: Challenges in the Treatment and Supervision of Sexual Abusers, p. 124-142. Wood and Barnes Publishing.
52. /HYHQVRQ-6'¶$PRUD' +HUQ$0HJDQ¶V/DZDQGLWV,PSDFWRQ&RPPXQLW\5H-entry for Sex Offenders. Behavioral Sciences and the Law (25), 587-602.
53. Fortney, T., Levenson, J.S., Brannon, Y., & Baker, J. (2007). Myths and Facts about sex offenders: Implications for practice and public policy. Sex Offender Treatment 2(1), 1-17.
54. Levenson, J.S, & Hern, A. (2007). Sex offender residence restrictions: Unintended consequences and community re-entry. Justice Research and Policy, 9(2), 59-73.
55. /HYHQVRQ-6 '¶$PRUD'Social policies designed to prevent sexual violence: The (PSHURU¶VQHZFORWKHVCriminal Justice Policy Review, 18(2), 168-199.
56. Prescott, D. & Levenson, J.S. (2007). Youth who have sexually abused: registration, recidivism, and risk. ATSA Forum, Volume XVIII, No. 2, Spring 2007.
57. Levenson, J.S. (2007). Residence restrictions and their impact on sex offender reintegration, rehabilitation, and recidivism. ATSA Forum, Volume XVIII, No. 2, Spring 2007.
58. Levenson, J.S., Brannon, Y., Fortney, T., & Baker, J. (2007). Public perceptions about sex offenders and community protection policies. Analyses of Social Issues and Public Policy, 7(1), 1-25.
!"#""#"$!!

2:12-cv-11194-RHC-DRG Doc # 1-10 Filed 03/16/12 Pg 29 of 40 Pg ID 136 59. Packard, R.L. & Levenson, J.S. (2006). Revisiting the reliability of diagnostic decisions in sex offender
civil commitment. Sex Offender Treatment, 1(3).
60. Levenson, J.S. & Morin, J.W. (2006). Factors predicting selection of sexual offenders for civil commitment. International Journal of Offender Therapy and Comparative Criminology, 50(6), 609-629.
61. Levenson, J.S. (2006). Sexual harassment or consensual sexual relations? Implications for social work education. Journal of Social Work Values and Ethics 3(2).
62. Levenson, J.S. (2006). Sex offender residence restrictions. Sex Offender Law Report, 7(3), April/May 2006, p. 33.
63. Levenson, J.S. & Morin, J.W. (2006). Risk assessment in child sexual abuse cases. Child Welfare, 85(1), 59-82.
64. Kokish, R., Levenson, J.S., & Blasingame, G. (2005). Post conviction sex offender polygraph examination: Client perceptions of accuracy and utility. Sexual Abuse: Journal of Research & Treatment, 17(2), 211-221.
65. Levenson, J.S. (2005). Sex offender residence restrictions: Report to the Florida Legislature.
66. /HYHQVRQ-6 '¶$PRUD'An ethical paradigm for sex offender treatment. Western Criminology Review. 6(1).
67. Levenson, J.S. & Cotter, L.P. (2005). The impact of sex offender residence restrictions: 1,000 feet from danger or one step from absurd? International Journal of Offender Therapy and Comparative Criminology, 49(2), 168-168.
68. Levenson, J.S. & Cotter, L.P. (2005). 7KHLPSDFWRI0HJDQ¶V/DZRQVH[RIIHQGHUUHLQWHJUDWLRn. Journal of Contemporary Criminal Justice. 21(1), 49-66.
69. Levenson, J.S. (2004). Sexual predator civil commitment: A comparison of selected and released offenders. International Journal of Offender Therapy and Comparative Criminology, 48(6), 638-648.
70. Levenson, J.S. (2004). Reliability of sexually violent predator civil commitment criteria. Law & Human Behavior, 28(4), 357-368.
71. Levenson, J.S. & Macgowan, M.J. (2004). Engagement, denial, and treatment progress among sex offenders in group therapy. Sexual Abuse: Journal of Research & Treatment, 16(1), 49-64.
72. Levenson, J.S. (2004). Policy interventions designed to combat sexual violence: Community notification and civil commitment. In R. Geffner & K. Franey (eds.) Identifying and Treating Sex Offenders: Current Approaches, Research, and Techniques. New York: Haworth Press.
73. Levenson, J.S. (2004). Everything You Ever Wanted To Know About Sex Offenders but Were Afraid To Ask: ATSA's Role in Public Education. ATSA Forum, Volume XVI, No. 2, Spring 2004
74. Levenson, J.S. (2003). Community notification and civil commitment of sex offenders: A review of policies designed to combat sexual violence. Journal of Child Sexual Abuse, 12(3/4).
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2:12-cv-11194-RHC-DRG Doc # 1-10 Filed 03/16/12 Pg 30 of 40 Pg ID 137

75. Macgowan, M. J., & Levenson, J. S. (2003). Psychometrics of the Group Engagement Measure with male sex offenders. Small Group Research, 34(2), 155-169.

76. Levenson, J.S. (2003). Book Review of Inside the Brain. Social Work in Health Care, 36(3), 97-99.

77. Morin, J.W., and Levenson, J.S. (2002). The Road to Freedom. [A workbook for sex offenders in treatment]. Distributed by Safer Society Press: Brandon, VT.

78. Levenson, J.S. and Morin, J.W. (2001). Treating Nonoffending Parents in Sexual Abuse Cases: Connections in Family Safety. Thousand Oaks, CA: Sage Publications.

79. Levenson, J.S. and Morin, J.W. (2001). Connections workbook for non-offending parents. Thousand Oaks, CA: Sage Publications.

80. Levenson, J.S. (2001). Overstating the Obvious: Social Workers are Mandated Reporters! (Part 2) NASW Florida Chapter Newsletter, May/June.

81. Levenson, J.S. (2001). Overstating the Obvious: Social Workers are Mandated Reporters! (Part 1) NASW Florida Chapter Newsletter, March/April.

82. Levenson, J.S. & Morin, J.W. (1998). The Role of the Nonoffending Parent in Sexual Abuse Prevention. ATSA Forum, Vol. X, No. 2, Summer 1998.

83. Morin, J.W., Levenson, J.S., & Cotter, L.P. (1998). New Directions in the Management of Sexual Offenders: A Report to the Florida Legislature. Tampa, FL: Florida Association for the Treatment of Sexual Abusers.

Dissertation: Levenson, J. S. (2003). Factors predicting recommendations for civil commitment of sexually violent predators under Florida's Jimmy Ryce Act. Dissertation Abstracts International, 64(03), UMI no. AAT 3085817.

RESEARCH FUNDING

$150,000 awarded October 2010 Award # 2010-WP-BX-0006

Department of Justice (SMART Office)

Role: Consultant

Principal Agency Recipient: Palm Beach County Sheriff's Office

&RPSUHKHQVLYH$SSURDFKHVWR6H[2IIHQGHU0DQDJHPHQW*UDQW3URJUDP3DOP%HDFK&RXQW\¶V

Comprehensive Sex Offender Management Strategy. This project will implement a multi-faceted, multi-

disciplinary strategy that incorporates assessment, risk-based supervision, registration and notification, re-entry

services and treatment, and multi-disciplinary collaboration.

$507,000 awarded 7/08 Award # 2008- MU-MU- 0001

National Institute of Justice

Role: Co-Investigator

Principal Investigator: Kristen Zgoba, New Jersey Department of Corrections.

A Multi-state Sexual Violence Recidivism Study investigating the predictive validity of Static-99 Risk Scores and

Adam Walsh Act Tier Guidelines. This study will compare the abilities of Static-99 scores and Adam Walsh Act

classifications to predict sexual recidivism.

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2:12-cv-11194-RHC-DRG Doc # 1-10 Filed 03/16/12 Pg 31 of 40 Pg ID 138

$484,000 awarded 7/12/06

National Institute of Justice

Role: Co-Investigator

Principal Investigator: Elizabeth Letourneau, Medical University of South Carolina

Evaluating the Effectiveness of Sex Offender Registration & Notification Policies for Reducing Sexual Violence

Against Women. This study will examine whether sex offender registration and notification laws in South

Carolina have had the intended effect of reducing sex crime rates in general and sex offense recidivism

specifically.

$296,656 awarded 8/07

National Institute of Justice

Role: Consultant

Principal Investigator: Elizabeth Jeglic, John Jay College of Criminal Justice

Sex Offender Management, Treatment, and Civil Commitment: An Evidence-Based Analysis Aimed at Reducing

Sexual Violence. This research project involves a comprehensive examination of the treatment and subsequent

recidivism of sex offenders incarcerated or detained in the mental health and criminal justice systems in New

Jersey.

$1,000 Pre-doctoral Research Grant awarded October 2002

Association for the Treatment of Sexual Abusers

Role: Principal Investigator (dissertation)

)DFWRUV3UHGLFWLQJ5HFRPPHQGDWLRQVIRU&LYLO&RPPLWPHQWRI6H[XDOO\9LROHQW3UHGDWRUVXQGHU)ORULGD¶V

Jimmy Ryce Act. This research examined the psychological evaluation process and identified factors predicting

civil commitment.

AWARDS Nominee, Faculty member of the year. Lynn University 2009.

Scholarly Forum Competition, Second Place Winner ³(PSLULFDOO\%DVHG5LVN$VVHVVPHQWRI&KLOG6H[XDO$EXVH´ Awarded by the Graduate Student Association, Florida International University, April 2001

Expert Witness Qualification, Broward County (FL) Circuit Court

x Judge Kearney

x Judge Seidlin

x Judge Holmes

x Judge Aramony

x Judge Frusciante

x Master Beilly

x Judge Birken x Judge Gold x Judge Horowitz

Expert Witness Qualification, Duval County (FL) Circuit Court x Judge Eleni Derke x Judge Russell Healey

PROFESSIONAL SERVICE
Professional Affiliations x Member, National Association of Social Workers (1987 ± present) x Member, Association for the Treatment of Sexual Abusers (1994 ± present) x Member, American Society of Criminology (2006± present) x Member, Society for Social Work and Research (2004 ± 2006) x Member, American Professional Society on the Abuse of Children (1996-2004)

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!"##$%&$'()(*+,*-$./&0&$ ! " # $ %&
!
Scholarly Service x Editorial Board. Sexual Abuse: Journal of Research and Treatment x Research grant proposal reviewer. National Science Foundation x Research grant proposal reviewer. National Institute of Justice x Manuscript reviewer. American Journal of Criminal Justice x Manuscript reviewer. Criminology & Public Policy x Manuscript reviewer. Journal of Research on Crime & Delinquency x Manuscript reviewer. Child Maltreatment x Manuscript reviewer. Journal of Criminal Justice x Manuscript reviewer. Analyses of Social Issues and Public Policy x Manuscript reviewer. Justice Quarterly x Manuscript reviewer. Sexual Abuse: Journal of Research and Treatment x Manuscript reviewer. American Journal of Orthopsychiatry: Interdisciplinary Perspectives on Mental Health
and Social Justice x Manuscript reviewer. Justice Research and Policy. x Manuscript reviewer. International Journal of Offender Therapy and Comparative Criminology. x Manuscript reviewer. Human Rights Watch. x Manuscript reviewer. Sociological Spectrum. x Manuscript reviewer. Journal of Research on Social Work Practice. x Manuscript reviewer. Ethical Human Sciences and Services. x Abstract Reviewer, Annual Conference, Association for the Treatment of Sexual Abusers (2006-present) x Editor, Florida Forum (1996-2001), Newsletter of the Florida Chapter of the Association for the Treatment
of Sexual Abusers (FATSA) x Abstract Reviewer, 12th National Conference on Child Abuse & Neglect, (1998)
Community Service x Invited Member, Sex Offender Housing Task Force, Council of State Governments, (2008) x Member, National Advisory Board, Safer Society Foundation (Oct. 2007 ± present) x Member, Prevention Coalition, National Center for Missing and Exploited Children (Oct. 2006 ± Dec 2007) x Board Member (2001-2007), Association for the Treatment of Sexual Abusers (ATSA) x Committee Chair (Oct. 2003 ± 2007), ATSA Ethics Committee (member to present) x Committee Chair (May 2002 ± Oct. 2003), ATSA Organization & Development Committee x Member, ATSA Public Policy Committee x President (2001-2004), Florida Association for the Treatment of Sexual Abusers (FATSA) x Board Member (1996-present), FATSA x Member (1999-2002), Statewide Child Abuse Death Review Team; Appointed by the Secretary of the Florida
Department of Health x Member, Broward County Sexual Abuse Intervention Network (SAIN) (1999-2002) x Subject Matter Expert On Sexual Violence for the Department of Corrections, Broward County Probation
Officers x Advisory Board Member, (1996-1998), Crawford Center, Inc. (A residential facility for sexually aggressive
children) x Invited Member, Assessment Workgroup, Child Welfare League Of America, (1995-1996)
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PUBLIC POLICY ACTIVITIES
2009 Chair, Broward County Sex Offender / Sexual Predator Task Force (appointed by Broward County Commissioners).
October 16, 2008. Invited testimony before the Vermont Legislature regarding sex offender registration, risk assessment, and the Adam Walsh Act.
August 29, 2008. Invited testimony before the Vermont Legislature regarding sex offender registration, notification, and residence restrictions.
March ,QYLWHGWHVWLPRQ\EHIRUHWKH)ORULGD/HJLVODWXUH¶V6HQDWH&ULPLQDO-XVWLFH&RPPLWWHH regarding proposed House Bill 1430: Residence of sex offenders and predators.
$XJXVW,QYLWHGWHVWLPRQ\EHIRUHWKH1HZ0H[LFR/HJLVODWXUH¶V&RXUWVDQGJustice Committee regarding sex crime policies
November 15, 2006. Invited testimony before the Kansas Legislature regarding residence restrictions for sex offenders and predators.
2FWREHU,QYLWHGWHVWLPRQ\EHIRUHWKH)ORULGD/HJLVODWXUH¶V+RXVH-udiciary Committee regarding proposed House Bill 91: Residence of sex offenders and predators.
ATSA (2005). Contributor: Amicus Brief submitted to the United States Supreme Court by the Association for the Treatment of Sexual Abusers in the case of Doe v. Miller. [Regarding sex offender residence restrictions]
ATSA (2002). Contributor: Amicus Brief submitted to the United States Supreme Court by the Association for the Treatment of Sexual Abusers in the case of Connecticut Dept. of Public Safety v. John Doe. >5HJDUGLQJLPSOHPHQWDWLRQRI³0HJDQ¶V/DZ´@

UNIVERSITY SERVICE

 IRB  Internship Committee  Human Services Dept Chair  Strategic Academic Assessment Plan Task
Force  Taskforce on Professoriate  Quantitative Reasoning taskforce

 3 dissertation committees, 1 QP committee  Research practicum site for Masters in Psych
students  Clinical supervisor, Masters in Psych students  Sexual Assault Response team  Alert Team 2006-2007  Student Conduct Review Board

Courses taught at Lynn: Introduction to Human Services; Groupwork & Family Systems; Social Problems & Policy; Ethical Practice; Current Perspectives in Substance Abuse; Introduction to Sociology; Assessment & Interviewing; Criminal Justice Research Methods; Case Management Strategies; Human Services Senior Seminar. Masters in Applied Psychology Internship Seminar.
Courses taught at FIU: Graduate courses taught: Human Behavior and the Social Environment I; Psychopathology (HBSE II); Theory and Practice with Family Violence; Social Welfare Policy; Child & Family Policy; Social Welfare Policy & Services. Undergraduate courses taught: Child Welfare Policy and Practice; Human Behavior and the Social Environment I; Social Work Practice Methods with Individuals; Social Work Practice Methods with Families and Groups; Techniques of Interviewing.
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DOCTORAL STUDENT SUPERVISION
Tina Bauer Goldsmith (2007-2008), Lynn University Ph.D. in Global Leadership. Dissertation committee. Emotional Intelligence and work performance.
Judith Cineas (2007-2008), Lynn University Ph.D. in Global Leadership. Dissertation committee. Faculty perceptions of student evaluations of teaching.
Sherry Fulmore-Murray (2005-2008), Lynn University Ph.D. in Educational Leadership. Qualifying paper committee chair. Violence against GLBT high school students.
Markell Harrison-Jackson (2005-2009), Lynn University Ph.D. in Educational Leadership. Dissertation committee chair. Factors Influencing Self-sufficiency Outcomes for Emancipated Foster Youth.
SELECTED MEDIA APPEARANCES
Vitelli, Romeo (November 29, 2011). How useful are public sex offender registries? Huffington Post. Crocker, Lizzie (November 22, 2011). The Penn State Scandal: 7 Facts about child sex abuse. Daily Beast. Hudack, Stephen (November 14, 2011). Lake mulls new restrictions for sex offenders. Orlando Sentinel. Nguyen, Linda (November 4, 2011). Sex offender registries don't deter convicts from reoffending. Calgary Herald. Bluestein, Greg (July 19, 2010). Georgia softens once lauded sex offender law. Associated Press. Gardner, Michael (April 12, 2010). King parents lobby for Chelsea's Law. San Diego Union Tribune. Skipp, Catherine (February 1, 2010). A law for sex offenders living under a Miami bridge. Time Magazine. Frank, John (February 24, 2010). Sex Laws Revisited. Miami Herald. Levenson, Jill (November 4, 2009). Child safety zones work. Miami Herald (OP-ED). Knutson, Ryan (September 3, 2009). Sex-Registry Flaws Stand Out. Wall Street Journal. Gallacher, Andy (August 13, 2009). Florida faces sex offender dilemma. BBC. Levenson, Jill (August 11, 2009). Residency rules endanger us. Miami Herald (OP-ED). Harlem, Georgia (August 6, 2009). Unjust and Ineffective. The Economist. Skipp, Catherine (August 3, 2009). A Bridge Too Far. Newsweek. Rood, Lee (July 19, 2009). Sex offender costs to skyrocket. Des Moines Register. Rodriguez, Ihosvani (July 9, 2009). Where neighbors are sex offenders. South Florida Sun Sentinel. Grimm, Fred (June 20, 2009). Sex offender laws burden neighborhood. Miami Herald. Vick, Karl (December 27, 2008). Laws to track sex offenders encouraging homelessness. Wall Street Journal. Reed Ward, Paula (October 26, 2008). Residency restrictions for sex offenders popular, but ineffective.
Pittsburgh Post-Gazette. Sandberg, Lisa (October 16, 2008). AG wants online IDs of sex predators listed. San-Antonio Express News. Spangler, Nicholas (April 8, 2008). For sexual predators, a camp of isolation. Miami Herald. Arkowitz, Hal & Lilienfeld, Scott (April, 2008). Once a sex offender, always a sex offender? Maybe not.
Scientific American. White, Nicola (April 2, 2008). Senate committee OKs sex offender bill. Tampa Tribune. Koch, Wendy (November 19, 2007). Many sex offenders are often homeless. USA Today. Lane, Mary Beth (October 7, 2007). Sex offender ghettos. Columbus Dispatch.
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2:12-cv-11194-RHC-DRG Doc # 1-10 Filed 03/16/12 Pg 35 of 40 Pg ID 142
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!
6KHU-XOLDQ &DUH\%HQHGLFW-XO\'HEDWHRQFKLOGSRUQRJUDSK\¶VOLQNWRPROHVWLQJNew York Times.
Hopkins, Andrea (June 1, 2007). Fear and hatred push U.S. sex offenders to fringes. Reuters. Keller, Larry (May 19, 2007). Residence limits keep sex offenders on move. Palm Beach Post. Sex offender housing restrictions (March 7, 2007). ABC World News with Charles Gibson. Koch, Wendy (February 26, 2007). Sex offender residency laws get a second look. USA Today. Aldhous, Peter (February 21, 2007). Sex offenders: Throwing away the key. New Scientist Magazine. Kalfrin, Valerie & Stanley, Doug (February 18, 2007). Protecting kids is goal, but how? Tampa Tribune. Eltman Frank (February 16, 2007). New NIMBY twist: Move LI sex offenders around in trailers. Associated
Press. Bauer, Laura (February 12, 2007). Kansas resists buffer zones. Kansas City Star. Rood, Lee (January 30, 2007). Lawmakers debate sex offender laws. Des Moines Register. Woodard, Elaine (December 19, 2006). Sex sting suspect teaches children martial arts. Daytona News-Journal. Klepal, Dan (December 11, 2006). Limits on sex offenders questioned. Cincinnati Enquirer. Smith, Jennifer (December 2, 2006). Residency laws for sex offenders under microscope. Newsday. Thompson, Elaine (November 19, 2006). Nowhere to go but out. Worcester Telegram. Warren, Jenifer (November 9, 2006). U.S. Judge blocks portion of new sex offender measure. Los Angeles
Times. Warren, Jenifer (October 30, 2006). Sex crime residency laws exile offenders. Los Angeles Times. The Predator Next Door. MSNBC Documentaries Greenblatt, Alan (September 8, 2006). Sex Offenders. Congressional Quarterly. &DPEULD1DQF\6HSWHPEHU2¶)DOOHQ02H[SHFWHGWRUHLQLQZKHUHVH[RIIHQGHUVFDQOLYHSt. Louis
Dispatch. Associated Press (July 23, 2006). Panel to mull changes in online sex offender list. Boston Globe. Bauer, Laura & Rizzo, Tony (June 12, 2006). When evil lurks near our children. Kansas City Star. 0DUWLQ0DUN-XQH&DOLIRUQLD¶VPRst unwanted: Restrictions on residency make nomads of paroled
sex offenders. San Francisco Chronicle. McGraw, Seamus (April 20, 2006). Flaws in sex offender laws. Court TV Crime Library
http://www.crimelibrary.com/news/original/0406/2001_sex_offenders.html. Crary, David (April 19, 2006). Rethinking sex offender laws a tough sell. Associated Press. Mooney, Jennifer (April 18, 2006). Bills aim to restrict sexual predators. Miami Herald. Grotto, Jason (4-day series 1/29/05 ± 2/1/06). Predators among us. Miami Herald. Payne, Melanie (December 18,2005). Sex offender site criticized. Southwest Florida News-Press. Koloff, Abbott. (December 12, 2005). Mt. Olive defends sex offender law. New Jersey Daily Record. Associated Press. (December 5, 2005). Child porn a growing problem online. Associated Press Weir, Kytja (November 22, 2005. Suspect has prior sex crime conviction. Charlotte Observer. Sloan, Karen (November 20, 2005). Managing predators among us. Omaha World-Herald. Dvorak, Todd (November 11, 2005). Iowa cities, towns barring child molesters. Associated Press. Dvorak, Todd (November 4, 2005). Sex offender law gets another challenge. Associated Press. Garcia, Jason (October 20, 2005). Lawmaker to re-vamp sex offender limits. South Florida Sun-Sentinel. Gomez, Alan (October 20, 2005). Florida lawmakers consider tougher statewide restrictions for sex offenders.
Palm Beach Post. Saunders, Jim (October 20, 2005). Lawmakers want uniform law. Daytona News-Journal. (October 16, 2005). Communities now have eviction power in pedophile ban. Associated Press. Price, Rita & Sheehan, Tom (October 16, 2005). Sex offender zoning faulted. Columbus Dispatch. Garcia, Jason (October 16, 2005). Sex offender laws prepared. South Florida Sun-Sentinel.
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Clayworth, Jason (October 11, 2005). Researcher says laws are flawed. Des Moines Register. Grimm, Fred (October 9, 2005). Sex offenders have a place to go: the shadows. Miami Herald. +DUULV%RQQLH2FWREHU(O\GHFODUHVLWVHOIµSUHGDWRUIUHH]RQH¶Des Moines Register. Worth, Robert (October 3, 2005). Exiling sex offenders from town. New York Times. /HYHQVRQ-LOO6HSWHPEHU/DZVGRQ¶WKHOSNHHSNLGVVDIHMiami Herald. Op-Ed. Correll, Deedee & Hethcock, Bill (September 27, 2005). Therapy promises no cure, just reduced risk. Colorado
Springs Gazette. Olkon, Sara (September 19, 2005). Not sex predators, but still outcasts. Miami Herald. Levenson, Jill (September 18, 2005). E-alerts on sex offenders. New York Daily News. Op-Ed. Garcia, Jason (September 15, 2005). Legislator seeks statewide law limiting where sex predators can live. South
Florida Sun-Sentinel. Carlson, Mike (August 25, 2005). Not in my City. Orlando Weekly. Turner, Jim (August 15, 2005.) Martin, St. Lucie look to keep sex offenders farther from children. Port St. Lucie
News. Perez, Robert (August 14, 2005). Offender rules may backfire, some say. Orlando Sentinel Ruger, Todd (August 4, 2005). New emails warn of nearby offenders. Sarasota Herald-Tribune. Perez, Robert (July 15, 2005). Zone law to hit sex offenders. Orlando Sentinel Pedicini, Sandra & Cox, Erin (June 22, 2005). Child-molester curbs questioned. Orlando Sentinel. Hemel, Daniel (June 22, 2005). Exile sex offenders from Manhattan, say 14 members of the city council. New
York Sun. Hill, Michael (June 20, 2005). Are sex offender laws becoming counterproductive? Associated Press. Moore, Martha (June 20, 2005). States look to high-tech tools to track, map sex offenders. USA Today. Valdemoro, Tania (June 15, 2005). Boce putting sex offenders on channel 20. Palm Beach Post. Willhoit, Dana (June 12, 2005). Experts disagree on treating sexual criminals. Lakeland Ledger. Fisher, Lise (June 13, 2005). Most sex offenders live in rural areas. Gainesville Sun. Torres, Ginelle (June 10, 2005). Sex Offenders Restricted. South Florida Sun-Sentinel. Holland, John (May 29, 2005). South Florida cities target sex offenders in an effort to protect children.
South Florida Sun-Sentinel. Medicaid Program says no Viagra for sex offenders (May 27, 2005). Maine Things Considered. Maine Public
Broadcasting Network. Musgrave, Jane (May 16, 2005). Murders ignite frenzied furor toward molesters. Palm Beach Post. Dennis, Brady & Waite, Matthew (May 15, 2005). Where is a sex offender to live? St. Petersburg Times. Silvestrini, Elaine (0D\6WDWH¶VSROLFLHVRQVH[FRQYLFWVDPRQJVWHUQHVWTampa Tribune. Sex Crimes, No easy Answers (April 26, 2005). The Pat Campbell Show. WFLA Talk Radio, Orlando FL. Moeller, Katy (April 24, 2005). Consequences Stem from Sex Offender Registry. Schenectady Gazette. Tracking Sex Offenders (April 21, 2005). ABC World News Tonight with Peter Jennings. Snyder, Susan (December 19, 2004). Shocking Sex Acts in School. Philadelphia Inquirer. Fisher, Lise (November 17, 2004). Chemical castration is ordered for convict. Gainesville Sun. Kelly, Dan (June 27, 2004). Therapist says sex predators can change behavior. Reading Eagle. Lewis, Ken (August 17, 2003). An attempt to explain the unexplainable: Experts share insights into rape, its
effects. St. Augustine Record. Wolfson, John (July 6, 2003). Locked Away. Orlando Sentinel. Stopping child sexual abuse (March 27, 2003). Child Protection Report, 29(7). Munno, Greg (December 9, 2002). Sex offender seeks custody of two girls. Syracuse Post-Standard. 5LFKH\:DUUHQ1RYHPEHU0HJDQ¶V/DZIDFHVKLJK-court test. Christian Science Monitor.
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INVITED PRESENTATIONS

Levenson, J.S. (2011). Sex offender policy trends: Research and Practice. Michigan State Bar Association. Dearborn, MI, 9/16/11.
Levenson, J.S. (2010). Sex offender policy trends: Research and Practice. Keynote speaker, Colorado Sex Offender Management Board. Breckenridge, CO, July 16, 2010.
Levenson, J.S. (2010). Sex offender policy trends: Research and Practice. Keynote speaker, Minnesota Association for the Treatment of Sexual Abusers. Minneapolis, MN, April 16, 2010.
Levenson, J.S. (2009). Residential proximity and sex offense recidivism. National Institute of Justice Crime Mapping Conference. New Orleans, LA. August 20, 2009.
Levenson, J.S. (2009). Justice System and Children's Rights (response to plenary speaker). National Adolescent Perpetrator Conference. Tampa, FL. May 18, 2009.
Levenson, J.S. (2008). Sex offender registration, notification, and residence restrictions. Vermont Legislature. August 29, 2008.
Levenson, J.S. (2008). Sex offender residence restrictions. National Coalition to End Homelessness Web Conference. Washington, DC. July 10, 2008.
Levenson, J.S. (2008). Sex offender residence restrictions. California Coalition on Sexual Offending. San Francisco, CA. May 15-16, 2008.
Levenson, J.S. (2008). 6H[RIIHQGHUSROLFLHV7KH(PSHURU¶VQHZFORWKHV" Keynote speaker, New Jersey ATSA Chapter, Scotch Plains, NJ, 4/11/08.
'¶$PRUD'.OHLQ$/HYHQVRQ-6/LHE5Sex offender policies in the new millennium (Plenary Session). 26th Annual Treatment & Research Conference of the Association for the Treatment of Sexual Abusers, San Diego, CA, 11/2/07.
Levenson, J.S. (2007). 6H[RIIHQGHUSROLFLHV7KH(PSHURU¶VQHZFORWKHV" Liberty Health Care Sex Offender Treatment Conference, Indianapolis, IN, 6/15/07.
Levenson, J.S. (2007). 6H[RIIHQGHUSROLFLHV7KH(PSHURU¶VQHZFORWKHV" Texas Sex Offender Treatment Board Conference, Austin, TX, 2/18/07.
Levenson, J.S., & Palmer, R. (2006). Ethical issues in working with sex offenders. 25th Annual Treatment & Research Conference of the Association for the Treatment of Sexual Abusers, Chicago, IL, 9/27/06.
Levenson, J.S. (2006). 6H[RIIHQGHUSROLFLHV7KH(PSHURU¶VQHZFORWKHV" Tennessee Sex Offender Treatment Board Conference, Nashville, TN, 8/21/06.
Levenson, J.S. (2006). 6H[RIIHQGHUSROLFLHV7KH(PSHURU¶VQHZFORWKHV" National Association of Criminal Defense Attorneys Conference, Miami Beach, FL 7/27/06.
Levenson, J.S. (2006). Se[RIIHQGHUSROLFLHV7KH(PSHURU¶VQHZFORWKHV" Keynote speaker, Illinois ATSA statewide conference, Bloomington, IL, 4/28/06.
Levenson, J.S. (2006). 6H[RIIHQGHUSROLFLHV7KH(PSHURU¶VQHZFORWKHV" Keynote Speaker, Alliance for Women in Community Corrections, Columbus, OH, 4/27/06.
Levenson, J.S. (2006). Keynote speaker, Sexual Violence Awareness Day Conference, Fort Myers, FL, 4/7/06. Levenson, J.S. (2006). 6H[RIIHQGHUSROLFLHV7KH(PSHURU¶VQHZFORWKHV" Illinois ATSA Board of Directors
Meeting, Chicago, IL, 1/17/05. Levenson, J.S. (2005). Sex offender policies: The EPSHURU¶VQHZFORWKHV", Florida Sexual Abuse Intervention
Network, Tampa, FL, 9/16/05. Levenson, J.S., (2004). Post conviction sex offender polygraph examination: Client perceptions of accuracy
and utility. Florida Chapter of the Association for the Treatment of Sexual Abusers Annual Meeting, Tampa, FL, 3/6/04. Levenson, J.S. (2004). Working with Families of Juvenile Sex Offenders, Florida Sexual Abuse Intervention Network, Tampa, FL, 4/30/04.
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Hines, B. & Levenson, J.S. (2004). Assessment and Treatment of Adolescents and Children with Sexual

Behavior Problems, 6SRQVRUHGE\&KLOGUHQ¶V3V\FKLDWULF&HQWHUMiami, FL, 3/13/04.

Levenson, J.S. (2003). Reunification, Supervision, and Visitation of Sex Offenders with Children. Department

of Corrections, Portland, OR, 4/24/03.

Levenson, J.S. (2003). Working with Families of Juvenile Sex Offenders, Florida Sexual Abuse Intervention

Network, Tampa, FL, 4/3/03.

Levenson, J.S. (2002). Juvenile Sex Offender Risk Assessment & Treatment Planning, NASW Ft. Myers

Chapter, Ft. Myers, FL, 10/18/02

Levenson, J.S. (2002). Reunification Following Sexual Abuse, 21st Annual Treatment & Research Conference

of the Association for the Treatment of Sexual Abusers, Montreal, Quebec, Canada, 10/2/02.

Levenson, J.S. (2001). Victim or Victimizer?, Assessment and Treatment of Adolescents and Children with

Sexual Behavior Problems, Ft. Lauderdale, FL, 8/10/01

Levenson, J.S. (2001). Juvenile Sex Offender Treatment: Child Development, Psychopathology, Family Safety

Planning, & Treatment Issues, Florida Chapter of the Association for the Treatment of Sexual Abusers

State Conference, Orlando, FL, 2/10/01

Levenson, J.S. (2000). Family Safety Planning and Reunification Following Sexual Abuse, Colorado Chapter of

the Association for the Treatment of Sexual Abusers State Conference, Denver, CO, 4/14/00.

Levenson, J.S. (1999). Connections: Family Safety Planning and Reunification Following Sexual Abuse, 18th

Annual Treatment & Research Conference of the Association for the Treatment of Sexual Abusers,

Orlando, FL, 9/22/99.

Levenson, J.S. (1998). Connections: Psychoeducational Group Treatment for Nonoffending Parents of

Sexually Abused Children and Partners of Sexual Offenders, Joining Forces: Sexual Abuse Conference, Lakeland, FL, 10/14/98.

Levenson, J.S. (1998). Family Safety Planning and Reunification Following Sexual Abuse, Third Annual Florida Sex Offender Treatment Conference, Deerfield Beach, FL, 6/18/98.

Levenson, J.S. (1998). Family Safety Planning and Reunification Following Sexual Abuse, DuPage County

Probation Department, Wheaton, IL., 5/8/98.

PEER-REVIEWED PRESENTATIONS AT PROFESSIONAL CONFERENCES

Levenson, J.S. (2011). A descriptive analysis of individuals on public registries. 30 Annual Treatment & Research Conference of the Association for the Treatment of Sexual Abusers, Toronto, CA, 11/3/10.
Levenson, J.S. (2010). Residential restrictions for sex offenders. 29th Annual Treatment & Research Conference of the Association for the Treatment of Sexual Abusers, Phoenix, AZ, 10/21/10.
Levenson, J.S. (2009). Proximity & sex offense recidivism. American Society of Criminology, November 4, 2009, Philadelphia, PA.
Levenson, J.S. (2009). Charting new territory: Mapping trends in sex offender policy. 28th Annual Treatment & Research Conference of the Association for the Treatment of Sexual Abusers, Dallas, TX, 9/30/09.
Levenson, J.S. (2008). Failure to register & sex offense recidivism. American Society of Criminology, November 12, 2008, St. Louis, MO.
Levenson, J.S., Prescott, D., & '¶$PRUDD. (2008). What can we learn from sex offenders? Data from a series of consumer satisfaction surveys. 27th Annual Treatment & Research Conference of the Association for the Treatment of Sexual Abusers, Atlanta, GA, 10/24/08.
Levenson, J.S. (2007). Sex offender residence restrictions. American Society of Criminology, November 14, 2007, Atlanta, GA.
Levenson, J.S. (2007). 6H[RIIHQGHUSROLFLHV7KH(PSHURU¶VQHZFORWKHV" Florida Council Against Sexual Violence, June 20, 2007, Daytona Beach, FL.
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2:12-cv-11194-RHC-DRG Doc # 1-10 Filed 03/16/12 Pg 39 of 40 Pg ID 146

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Levenson, J.S. (2007). 6H[RIIHQGHUSROLFLHV7KH(PSHURU¶VQHZFORWKHV" Sexual Abuse Intervention Network,

May 16, 2007, Tampa FL.

Levenson, J.S. & Cotter, L.P. (2006). 7KHLPSDFWRI0HJDQ¶V/DZDQGUHVLGHQFHUHVWULFWLRQVRQVH[RIIHQGHU reintegration, 25th Annual Treatment & Research Conference of the Association for the Treatment of

Sexual Abusers, Chicago, IL, 9/28/06.

Palmer, R., & Levenson, J.S. (2005). Ethical issues in working with sex offenders. 24th Annual Treatment &

Research Conference of the Association for the Treatment of Sexual Abusers, Salt Lake City, UT,

11/18/05.

Levenson, J.S. & Cotter, L.P. (2005). The LPSDFWRI0HJDQ¶V/DZDQGUHVLGHQFHUHVWULFWLRQVRQVH[RIIHQGHU

reintegration, 24th Annual Treatment & Research Conference of the Association for the Treatment of

Sexual Abusers, New Orleans, LA, 11/3/05. Levenson, J.S. (2005). 7KH,PSDFWRI0HJDQ¶V/DZ on Sex Offender Reintegration. 9th Annual Conference of

the Society for Social Work and Research, Miami, FL. 1/16/05. Levenson, J.S. (2004). Sex Offender Civil Commitment Selection: Preliminary Research Findings, 23rd Annual

Treatment & Research Conference of the Association for the Treatment of Sexual Abusers,

Albuquerque, NM, 10/29/04. Levenson, J.S. & Rapa, S. (2003). Clinical Supervision of Therapists who Treat Sex Offenders, 22nd Annual

Treatment & Research Conference of the Association for the Treatment of Sexual Abusers, St. Louis,

MO, 10/9/03. Rapa, S. & Levenson, J.S. (2003). Countertransference in the treatment of sexual abusers, 22nd Annual

Treatment & Research Conference of the Association for the Treatment of Sexual Abusers, St. Louis,

MO, 10/9/03.

Levenson, J.S. (2003). Engagement, Denial, and Treatment Progress in a Sample of Male Sex Offenders in Group Therapy, 22nd Annual Treatment & Research Conference of the Association for the Treatment of

Sexual Abusers, St. Louis, MO, 10/9/03.

Macgowan, M.J. & Levenson, J.S. (2003). Psychometrics of the Group Engagement Measure with Male Sex Offenders. 7th Annual Conference of the Society for Social Work and Research, Washington, D.C.,

1/17/03. Levenson, J.S. (2002). Improving CPS risk assessment in child sexual abuse cases. 10th Annual Conference of

the American Professional Society on the Abuse of Children (APSAC), New Orleans, LA, 5/30/02 Levenson, J.S. (2001). The Role of ATSA Members in Child Protection, 20th Annual Treatment and Research

Conference of the Association for the Treatment of Sexual Abusers, San Antonio, TX, 11/9/01.

Levenson, J.S. (2001). Social Workers are Mandated Reporters, NASW statewide conference, Ft. Lauderdale,

FL, 6/16/01 Levenson, J.S. (2000). Connections: Working with the Nonoffending Parent in Sexual Abuse Cases, 19th

Annual Treatment and Research Conference of the Association for the Treatment of Sexual Abusers,

San Diego, CA, 11/3/00.

Levenson, J.S. (2000). Psychopathy in Children, NASW statewide conference, Ft. Lauderdale, FL, 6/22/00.

Levenson, J.S. (1999). Inside the Mind of the Sex Offender, NASW statewide conference, Ft. Lauderdale, FL,

6/11/99 Levenson, J.S. (1999). Family Safety Planning and Reunification Following Child Sexual Abuse, 7th Annual

Conference of the American Professional Society on the Abuse of Children (APSAC), San Antonio,

TX., 6/4/99.

Levenson, J.S. (1998). Utilizing Group Process as an Intervention Strategy with Sexual Offenders, 17th Annual

Treatment & Research Conference of the Association for the Treatment of Sexual Abusers, Vancouver,

British Columbia, 10/16/98.

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2:12-cv-11194-RHC-DRG Doc # 1-10 Filed 03/16/12 Pg 40 of 40 Pg ID 147

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Levenson, J.S. (1998). Bridging the Gap Between Assessment & Case Planning, 6th Annual Conference of the

American Professional Society on the Abuse of Children (APSAC), Chicago, IL., 7/10/98. Levenson, J.S. (1997). Connections: Working with the Nonoffending Parent in Sexual Abuse Cases, 16th

Annual Treatment and Research Conference of the Association for the Treatment of Sexual Abusers,

Arlington, VA, 10/17/97.

Morin, J.W. & Levenson, J.S. (1997). Defining Successful Completion: A Competency Based Treatment

Model, Second Annual Florida Sex Offender Treatment Conference, Tampa, FL, 4/11/97.

Morin, J.W. & Levenson, J.S. (1996). Defining Successful Completion: A Competency Based Treatment Model, 15th Annual Treatment and Research Conference of the Association for the Treatment of Sexual

Abusers, Chicago, IL, 11/15/96.

Social Work Supervision (1991-present) x Field instruction for MSW & BSW students from FIU, FAU, and Barry University x Clinical supervision for Masters-Level licensure interns as required by Florida Statute 491

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2:12-cv-11194-RHC-DRG Doc # 1-11 Filed 03/16/12 Pg 1 of 13 Pg ID 148
EXHIBIT 10 DECLARATION OF DR. JANET FAY-DUMAINE, PSY. D.,
ON THE PLAINTIFFS’ RISK LEVEL

2:12-cv-11194-RHC-DRG Doc # 1-11 Filed 03/16/12 Pg 2 of 13 Pg ID 149
Declaration and Report of Janet Fay-Dumaine, Psy. D.
TO: Miriam Aukerman and Paul Reingold RE: Static-99R Assessment of Named Plaintiffs DT: February 29, 2012
Introduction
You asked me to provide an actuarial assessment regarding the risk for recidivism in five sex offender cases that you sent to me for review. As we discussed, there are multiple methods for risk assessment, some of which include interviewing the offender and some of which do not. The actuarial risk assessment technique used for this report is the Static-99R, which is widely employed throughout the United States, including by the Michigan Department of Corrections. It is described in more detail below. It is described in more detail below.
I scored three male offenders (John Doe #2, John Doe #3, and John Doe #4) using the Static99R. One other offender (John Doe #1) could not be scored because his conviction was for armed robbery and kidnapping; there was nothing in the record to indicate that he has ever been convicted of a sexual offense or that there was a sexual component to his offense and the Static-99R only measures risk for sexual offenders. In addition, the one female offender (Mary Doe) could not be scored because the Static-99R does not apply to female offenders. I have included some general information about female offenders in this report.
Summary of the Report
The three cases that I scored using the Static-99R came out as follows: John Doe #2, John Doe #3, and John Doe #4 all earned a score of “two.”
The Static-99R score for risk of reoffending is typically expressed as a percentage. Offenders from routine correctional samples with a score of two have been found to sexually reoffend at a rate of 5.0 percent in five years. Using a confidence interval of 95%, the range of the rate of reoffending would be 3.4 percent to 7.4 percent.
As to the female offender Mary Doe, the available information suggests that the five-year risk for reoffending in that population is extremely low, which means in the 2 percent range.
For all, the risk of sexual reoffending declines both with the passage of time (without a new offense) and with increasing age. Mr. Doe #2 has been in the community, offense free, for 15 years (since 1997), and Mr. Doe #3 has been in the community, offense free, for 11 years (since 2001). Previous data show that those in the Low and Low-Moderate nominal category for risk for re-offending have a significant decline in risk as time in the community increases. All three offenders here also earned one point for being under 35 years of age. When they turn 35 (absent new offenses) their Static-99R score will drop to “one.” A score of “one” has a predicted recidivism rate of 3.8 percent with a 95% confidence interval from 2.5 percent to 5.8 percent.
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Sex Offender Risk Assessment Page 2 of 4
Overview
In the following brief report I describe both the measures used and the interpretation of the results. The results presented are only for recidivism for sexual reoffending. Each Static-99R coding form will not be presented here, but is available for review. The score for each subject is attached as Exhibit 1. A copy of my CV is attached as Exhibit 2.
Risk Assessment
The Static-99 Revised (Static-99R) is an instrument designed to assist in the prediction of sexual (and violent) recidivism for male sexual offenders. The measure defines recidivism in terms of officially detected new offenses (charges or convictions). This instrument has been shown to be a moderate predictor of sexual re-offense potential. All risk assessment instruments are based on officially detected new offenses within the population, and therefore may understate risk to the extent that such offenses are underreported, or overstate risk to the extent that a charged offense may turn out to be mistaken or misattributed.
The Static-99R fully incorporates the relationship between age at release and sexual recidivism, whereas the original Static-99 scale did not (Helmus, 2009). Therefore, the developers of Static-99R recommend that the revised version of the scale (Static-99R) replace Static-99 in all contexts. Static-99R has shown moderate accuracy in ranking offenders according to their relative risk for sexual recidivism. The recidivism estimates provided by the Static-99R are group data and as such these estimates do not directly correspond to the recidivism risk of an individual offender. The accuracy in assessing relative risk with the Static-99R has been consistent across a wide variety of samples, countries, and unique settings (Helmus, 2009).
Discussion of Static-99R Scores
Of the three male cases that had sufficient data to develop a Static-99R score, they all scored a “two.”
Percentile data for Static-99R scores are based on an international sample of sexual offenders from eight studies, including samples from Canada, the United States, England, Austria, and Sweden (n = 4,040). The samples used for percentile data were considered relatively unselected groups that would be representative of the population of all adjudicated sex offenders within a given correctional system. The norms are presented as percentile ranges, reflecting the observed percentage of offenders scoring at or below a specified score. Percentile rankings are useful in situations where the allocation of limited resources must be made, such as for treatment, community supervision, etc.
Absolute degrees of recidivism risk cannot be directly inferred from the percentile rankings. The appropriateness of applying these percentiles to sexual offenders in jurisdictions other than those listed above is not known.
Compared to a representative and international sample of adult male sexual offenders, a Static-99R score of “two” falls into the 39.7 – 54.4 percentile. This percentile range means that 39.7 – 54.4 of sex offenders in these samples scored at or below a score of “two.” Conversely, 45.6 – 60.3 percent of this sample of sex offenders scored higher.
Relative risk refers to the ratio of two recidivism rates. Research has found the relative risk associated with different Static-99R scores to be consistent even when the overall base rate
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Sex Offender Risk Assessment Page 3 of 4
of recidivism varies across samples. Information concerning relative risk for Static-99R scores were based on 22 samples of sexual offenders from Canada, the United States, the United Kingdom, Denmark, Holland, Austria, Sweden, Germany, and New Zealand (n = 8,047). The recidivism rate for sex offenders with a score of “two” would be expected to be approximately the same as the recidivism rate for the typical sexual offender (defined as median score of two).
There have been a large number of studies examining the absolute sexual recidivism rates associated with Static-99 scores. Helmus (2009) combined 28 Static-99 replication studies and was able to calculate Static-99R scores for 23 of these samples. The samples (n = 8,139) were drawn from Canada, the United States, United Kingdom, western Europe and New Zealand. Recidivism was defined as charges in about half of these studies and as convictions in the other half.
Although the relative risk was consistent across studies, the observed recidivism base rates varied considerably across samples based on factors not measured by Static-99R. Samples that were preselected to be high-risk/high-needs (6 samples) show the highest recidivism rates; samples preselected based on treatment need (6 samples) had intermediate recidivism rates; and routine correctional samples had recidivism rates substantially lower than the preselected groups (and also lower than the recidivism rates in the original development samples for Static-99).
Local recidivism norms applicable to the group of offenders to which a specific offender most closely resembles would be ideal, but are not available for these cases. The routine sample norms developed in the Static-99R research as considered appropriate to reflect recidivism rates as the routine sample norms were developed with typical sex offenders in correctional systems. A description of the routine correctional samples follows.
Routine Correctional Samples
This group consisted of eight samples of sex offenders from Canada, the United States, England, Austria and Sweden. These samples were relatively random (i.e., unselected) samples from a correctional system (as opposed to samples from specific institutions or subject to specific measures). In other words, they can be considered roughly representative of all adjudicated sex offenders. Some offenders in these samples would have been subsequently screened for treatment or other special interventions (e.g., psychiatric admission or exceptional interventions related to dangerousness), but these samples represent the full population of all offenders prior to any pre-selection processes. The recidivism norms for the unselected samples are the closest available to a hypothetical average of all sex offenders.
As noted in the summary above, offenders from routine correctional samples with a score of two have been found to sexually reoffend at a rate of 5.0 percent in five years. Using a confidence interval of 95%, the range of the rate of reoffending would be 3.4 percent to 7.4 percent.
All three offenders in this case earned a point due to their age of under 34.9 years. As with other types of criminal offenses, sexual offending tends to decrease steadily with age (Barbaree & Blanchard, 2008; for research on general offending, see Hirschi & Gottfredson, 1983; Sampson & Laub, 2003). The offenders scored are all currently under 34 years old. They will therefore drop from a score of “two” to a score of “one” after their 35th birthday. A score of “one” has a predicted recidivism rate of 3.8 percent with a 95% confidence interval from 2.5 percent to 5.8 percent.
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ATTACHMENT A PLAINTIFFS’ STATIC 99R SCORES

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Static-99R Scores

Name JOHN DOE #2 JOHN DOE #3 JOHN DOE #4

Score two two two

Items for which point(s) earned
Aged 18 to 34.9 Any unrelated victims
Aged 18 to 34.9 years Any unrelated victims
Aged 18 to 34.9 years Any unrelated victims

Unable to score JOHN DOE #1 (did not commit a sexual offense) and MARY DOE (female).

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ATTACHMENT B CURRICULUM VITAE

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Curriculum Vitae
Janet Fay-Dumaine, Psy. D. PO Box 3263
Ann Arbor MI 48106 734/845-8872
Educational History
Virginia Consortium Program in Clinical Psychology* Virginia Beach, Virginia
*The College of William and Mary, Eastern Virginia Medical School, Norfolk State University, Old Dominion University Full APA Accreditation
Doctoral degree requirements completed August 31, 1994 Psy.D. awarded December 1994
University of Massachusetts/Boston B.A., Summa Cum Laude with Honors in Psychology May 1988
Professional Employment History
Center for Forensic Psychiatry November 2010 to present
The Center for Forensic Psychiatry is a state facility that provides forensic evaluations and treatment services to criminal defendants throughout Michigan. Responsibilities include evaluations of competence to stand trial, criminal responsibility and other forensic issues; providing group therapy and participation in treatment team meetings; participation in the Path Oversight Committee for committed sex offenders and other duties as assigned.
Diagnostic and Evaluation Center Nebraska Department of Correctional Services March 2006 to November 2010
The Diagnostic and Evaluation Center is the initial classification center for inmates entering the Nebraska prison system. Responsibilities as supervisor of mental health include supervision of five licensed, master level clinicians and an administrative assistant, development and implementation of assessment protocol for incoming inmates, monitoring and treatment of inmates on suicide prevention plans and inmates with major mental illness, evaluation and

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2 Curriculum Vitae
assessment of pre-sentence and post-conviction sex offenders as assigned, clinical supervision of pre-licensed doctoral level psychology staff, participation Clinical Sex Offender Review Team, Clinical Violent Offender Review Team and Mentally Ill Review Team and various administrative duties.
Legal Services Branch of Forensic Services Administration District of Columbia Department of Mental Health May 1999 to February 2005
Legal Services Branch is a forensic evaluation public service in Washington, D.C., located at the St. Elizabeths Campus. Evaluations are conducted at the D.C. Detention Facility, Correctional Treatment Facility, St. Elizabeths Campus, and the D.C. Superior Court cellblock. Responsibilities as a clinical psychologist include conducting post-trial evaluations – probation, sex offender and aid at sentencing; pre-trail competency screenings at the field office at Superior Court, competency and criminal responsibility evaluations, and providing consultation to attorneys, probation officers, and clinical staff. Responsibilities also include clinical supervision of unlicensed psychology staff and pre-doctoral psychology interns and post-doctoral residents, as well as providing the Ethics Seminar to pre-doctoral interns.
Northern Virginia Mental Health Institute Falls Church, Virginia June 1997 to May 1999
NVMHI is a state inpatient facility. Responsibilities as senior psychologist included participation in treatment team, providing treatment services for inpatients including patients adjudicated not guilty by reason of insanity and conducting the competency education group. Services included development of treatment plans, individual and group psychotherapy, and psychological assessment and evaluation. Evaluation services for NGRI acquittees included reports to Forensic Review Panel to petition for privileges and annual reports to the court. Supervised psychology externs for psychological assessment and psychotherapy. Additional responsibilities included serving as Forensic Coordinator for the facility as of October 1998. Responsibilities included risk assessment of forensic admissions, supervision of forensic evaluations, and administrative duties.

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3 Curriculum Vitae
Central State Hospital, Forensic Unit Petersburg, Virginia October 1994 to May 1997
CSH Forensic Unit is the only maximum-security forensic mental health facility in Virginia. Responsibilities as senior psychologist included participating in treatment team and providing services for jail transfers, defendant’s order for restoration to competency and defendants found not guilty by reason of insanity. Services included individual psychotherapy, psychological assessment, conducting community meeting and monitoring of point system on ward. Coleader of competency education group for patients admitted for restoration to competency. Evaluation services included initial psychological evaluation, analysis of aggressive behavior, competency to stand trial, and mental status at the time of the offense. Provided clinical supervision of pre-doctoral interns from the Medical College of Virginia.
Faculty Appointments
December 2011 – present Adjunct Faculty Madonna University Livonia, Michigan
December 1999 - January 2005 Adjunct Faculty Argosy University Washington, D.C.
August 1996 – May 1997 Assistant Clinical Professor of Psychiatry Virginia Commonwealth University/Medical College of Virginia Richmond, Virginia
Presentations
Symposium: Difficult Cases, Multiple Choices: A Few Forensic Dilemmas presented at the March 2006 Society for Personality Assessment Annual Meeting, San Diego, California.
Ethics Workshop March 19, 2002 Pathways Homes, Inc. Fairfax, Virginia

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4 Curriculum Vitae
Professional and Ethical Issues Workshop December 7, 2001 St. Elizabeths Psychology Department Washington, D.C.
Mental Illness as a Risk Factor for Interpersonal Violence October 2, 2001 Workplace Violence Conference Huntington, West Virginia
Ethical Issues in Forensics March 2001 St. Elizabeths Campus, Washington, D.C.
Institute of Law, Psychiatry and Public Policy’s Risk Assessment Training April 1998 Participate in panel discussion highlighting risk assessment issues.
“Awareness of illness in Inpatients Diagnosed with Schizophrenia and Bipolar Disorder.” Poster session at Southeastern Psychological Association 1997 Annual Meeting presented April 1997.
Institute of Law, Psychiatry and Public Policy’s Insanity Acquittee Evaluation Training March 1997 Presentation, instruction, and discussion of not guilty by reason of insanity case illustrating forensic evaluation process.
Training and Clinical Internship
Institute of Law, Psychiatry and Public Policy University of Virginia, Charlottesville
March 2000 Juvenile Evaluation Update Training March 1995 Sex Offender Evaluation Training December 1994 Insanity Acquitte Evaluation Training November 1994 Basic Forensic Evaluation Training
Springfield Hospital Center Sykesville, Maryland September 1993 through August 1994
SHC is an APA accredited internship program that includes two six-month inpatient rotations at the state hospital. Each rotation included individual and group psychotherapy, treatment team meetings, conducting ward community meetings, and completing at least one psychological assessment case per month. Staff psychologist for the ward supervised all ward activities. Group psychotherapy supervision and a weekly assessment seminar were conducted for the interns. During the year, completed one day a week outpatient practice at a community mental health center. Responsibilities for adolescent and child services included initial psychological evaluation of new referrals, individual psychotherapy for a caseload of three to four clients and participation in family therapy practice seminar. Throughout the internship year, interns and staff

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participated in a series of seminars covering a broad array of psychotherapy and assessment topics.
Doctoral Practica
Eastern State Hospital – Mentally Ill/Chemical Abuse Recovery Unit July 1992 to March 1993
Twenty hour per week advanced graduate training. Responsibilities included co-leader of group psychotherapy and substance abuse group, individual psychotherapy, participation in treatment team meetings, intake assessments, including administration of Addiction Severity Index interview, and other psychological testing as appropriate.
Research Experience
Research Assistant – College of William and Mary September 1991 to May 1992
Responsibilities included conducting research investigating interaction styles of depressed/non-depressed female college students. Directed small groups in systematic relaxation, videotapes interpersonal interactions between subjects, and rated interactions. Conducted interviews with adult inpatients diagnosed with schizophrenia in a long term care unit at Eastern State Hospital. Rated interviews for positive and negative symptoms.
Research Assistant – College of William and Mary September 1990 to May 1991
Assisted in clinical interview and administration of the Wisconsin Card Sort to adult inpatients diagnosed with schizophrenia in long term care unit at Eastern State Hospital. Rated interviews for positive and negative symptoms.
Professional Licensure and Associations
Licensed Psychologist - Michigan Licensed Psychologist – Nebraska (inactive) Licensed Clinical Psychologist – Virginia (inactive) Licensed Psychologist - Washington, D.C. (inactive) Society for Personality Assessment - Member

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EXHIBIT 11 DECLARATION OF PETER WAGNER, J.D., ON THE IMPACT OF EXCLUSION ZONES

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John Doe #1, et al., v. Richard Snyder, et al.
EXPERT REPORT/DECLARATION OF PETER WAGNER, J.D.
1. Introduction
I am an attorney and Executive Director of the Prison Policy Initiative, a non-profit research organization based in Easthampton, Massachusetts. The Prison Policy Initiative focuses on the intersection of criminal justice policy and other social issues.
I have been retained by plaintiffs as a geographic expert to address and quantify the impact of Michigan’s laws that prohibit registered sex offenders from living, working, or loitering within 1,000 feet of a school.
2. Relevant experience
As further detailed in my c.v., I regularly make maps that analyze Census and other demographic data in relation to statutory restrictions that impose geographic limits for criminal justice purposes.1 My experience includes:
• I testified in Whitaker v. Perdue (U.S. Dist. Ct., N.D. Georgia, 4:06-cv-00140-CC) in 2006 and 2008 regarding the impact of HB1059, Georgia's sex offender residency restriction law. I prepared maps of 1,000 foot exclusion zones around schools, day-care centers, bus stops, parks and other areas listed in the statute as places that people on the sex offender registry cannot live. I initially prepared analyses of the law’s effect in 6 counties, and subsequently prepared detailed maps of the exclusion zones in two additional counties.
• From 2006 to 2009, I led a project that involved mapping 1,000 foot zones around schools — and a smaller distance around parks — in Hampden County, Massachusetts and then analyzing the Census populations of the affected areas. The purpose was to evaluate the efficacy and socioeconomic implications of a sentencing law that gave higher
1 A copy of my c.v. is attached.

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sentences for certain drug offenses committed in prohibited areas. These findings were published in reports I coauthored entitled The Geography of Punishment: How Huge Sentencing Enhancement Zones Harm Communities, Fail to Protect Children2 and Reaching too far, coming up short: How large sentencing enhancement zones miss the mark.3
• In 2006, I prepared a detailed study for the Massachusetts Committee for Public Counsel Services of a sex offender residence ordinance in Revere, Massachusetts, which prohibited offenders from living within 1,000 linear feet of a school, nursery school, day care center, kindergarten, or playground.
• I have performed similar analyses in Massachusetts in the city of Lynn (2009 and 2011), the city of Waltham (2010) and the town of Barnstable (2009).
3. Methodology
The methodology in all of these research projects was to use a Geographic Information Systems software package called ArcView to map each protected property by drawing a 1,000 foot “buffer” around each. For my socio-demographic analysis, I would then overlay that map with U.S. Census data and calculate the population that lived within and outside the zones. For housing analyses, I then determined which properties in the jurisdiction were within the exclusion zones.
Identifying each protected place is a time-consuming but straightforward process. The key ingredient for each of these analyses is the ability to obtain the complete geographic coordinates of every property parcel boundary in the jurisdiction. It is not sufficient to perform such an analysis with only the address of the protected property/building.
2 The Geography of Punishment: How Huge Sentencing Enhancement Zones Harm Communities, Fail to Protect Children, by Aleks Kajstura, Peter Wagner and William Goldberg, Prison Policy Initiative, July 2008 available at http://www.prisonpolicy.org/zones/ 3 Reaching too far, coming up short: How large sentencing enhancement zones miss the mark, by Aleks Kajstura, Peter Wagner and Leah Sakala, Prison Policy Initiative, January, 2009, available at http://www.prisonpolicy.org/toofar/

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For example, the residence restrictions for sex offenders that I analyzed in Georgia and Massachusetts were measured on a property line to property line basis. Similarly, the drug sentencing enhancement statute I analyzed in Massachusetts was measured from the property line of the school parcels. To be accurate, such analyses must account for the fact that laws are enforced based on distance from a property boundary line, rather than from a building. This analysis produces a result that encompasses significantly more area than non-geographers would expect.
4. The Difficulties Created by Mapping Exclusion Zones.
In my work mapping criminal justice exclusion zones in other states, I have identified several significant problems with the use of such zones:
A. It is extremely difficult if not impossible to identify the areas that are inside and outside the exclusion zones, even with sophisticated mapping technology;
B. Exclusion zones cover a huge area, much of which is not actually “near” schools as we think of distance in human terms;
C. Exclusion zones have the practical effect of severely restricting access to housing and employment, and of limiting the ability to engage in normal human activity for those subject to exclusion.
A. Identifying areas that are inside and outside of the zones is extremely difficult if not impossible.
Geographic exclusion zones can only function to keep individuals out of prohibited areas if individuals know where the exclusion zones are.4 However, in practice it is extremely difficult if not impossible for an individual to determine, at any given time, whether he or she is within an exclusion zone because:
4 My research on the Massachusetts school zones law showed that it has been ineffective at moving drug activity away from schools and that, as currently designed it can never work, because individuals do not know where the zones are.

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• The protected areas are unmarked. Moreover, because protected areas bisect private property, their boundaries are impossible to mark.
• Long distances are extremely hard to estimate. Most people have a very hard time estimating distances, and the only experience most people have with quantifying the distance of 1,000 feet is when approaching work construction zones at highway speeds. Experiments conducted for my reports demonstrated that very few people can estimate large distances reliably.
• Protected locations are difficult to locate. Even if people can recognize 1,000 feet, they need to know where the protected locations are in order to mentally measure that distance. This is often difficult and frequently impossible. Even if one knows where a school is, one is unlikely to know where its property line is (e.g., see the strange shapes below in Figures 3, and 4). Further, in both urban and rural locales, it is generally difficult to see 1,000 feet in a single direction without visual obstructions.
• Protected zones will have irregular shapes and be difficult to recognize and avoid. The zones are measured from the irregularly shaped property boundaries of the protected places, making for an irregularly shaped zone. Then, they frequently overlap with other zones, making an even more irregular shape that is difficult to recognize and avoid.
• Exclusion zones in dense areas frequently intersect and overlap, blanketing communities with multiple zones. This has the effect of making it impossible for an individual to determine when he or she is inside the boundaries of a zone, or of multiple zones that simultaneously extend from multiple locations.5 The most critical finding in our
5 In New Jersey, the Sentencing Commission explained the problem in particularly colorful language exploring the impact of the state’s then-existing statute creating a 1,000-foot sentencing enhancement zone for certain drug offenses: “Simply stated, New Jersey’s densely populated urban areas have been literally transformed into massive, unsegmented ‘drug free’ zones. Consequently, the protected areas demarcated by the statutes no longer exist, having merged with contiguous zones.” The New Jersey Commission to Review Criminal Sentencing, Supplemental Report on New Jersery's Drug Free Zone Crimes and Proposal for Reform, April 2007 at 4, available at http://sentencing.nj.gov/downloads/supplemental%20schoolzonereport.pdf.

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Massachusetts school zone report was that the law — which mandated a single unmarked zone around numerous protected places — resulted in a massive overlapping zone that covered a majority of the urban parts of our study area. One of our recommendations was to reduce the size of the zones to 100 feet, allowing distinct and identifiable zones to be created.
Figure 1. Note the overlapping shapes of the zones in Holyoke Massachusetts from the Geography of Punishment report. This detail view is a good explanation of the strange shapes that multiple 1,000 feet exclusion zones will create.
• Accurately mapping exclusion zones, even with sophisticated technology and access to the relevant parcel boundary data is very time consuming. For example, after obtaining the parcel boundary data for my analysis of the Massachusetts town of Barnstable, it took more than 15 hours to produce my map. And as discussed below, given the unavailability of the parcel boundary data in Michigan, an individual on the registry would not be able to determine the boundaries of the prohibited areas even if they had the required time, expertise and tools to map the exclusion zone.

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The difficulty — or impossibility — of determining what areas are inside or outside exclusion zones is relevant to Michigan’s laws prohibiting registrants from residing, working, or loitering within 1,000 feet of school property. I did not find any evidence that the Michigan legislature knew where the boundaries would be when it passed this legislation. Moreover, I was unable to identify any state agency that maintains a state-wide map of the exclusion zones.
While it is possible to use specialized tools to evaluate individual locations one at a time, there is no systematic way to map an entire area short of the research methodology outlined above. The process of determining whether a particular property is within a protected area is burdensome in the context of the employment and residence restrictions. In the context of a prohibition on “loitering,” which requires moment-to-moment knowledge of whether one is within an exclusion zone, it is likely impossible for a registrant to comply.
B. Exclusion zones cover a huge area, much of which, in conventional human terms, is not actually “near” schools.
• 1,000 feet is actually quite far. For the Geography of Punishment report, we set out to discover whether people can be seen 1,000 feet from a school under ideal circumstances. We sought out a school on a flat, straight and unobstructed road, but we had considerable difficulty finding such a location. We eventually found a street in West Springfield that fit our criteria and then, because common household tools are incapable of measuring such large distances, we purchased a measuring wheel typically used for surveying. While standing on the school’s property line, I took pictures of my co-author at various distances from the property. (See images in Figure 2 below.) Despite picking a day in early spring before the trees had leaves, and despite picking the flattest street we could find, and despite my co-author carrying a huge white sign, it was nearly impossible to see my co-author at the longer distances.

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Figure 2.

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• The laws restrict access to areas that, in human terms, are not at all close to schools. The distances are measured as the crow flies, not as human beings travel. Measuring the exclusion zone in a straight line, regardless of obstruction, puts many distant areas under the law’s jurisdiction. Below in Figure 3 is an example of a single 1,000 foot school zone from the Geography of Punishment report illustrating how a 1,000 foot zone can apply to housing that, in human terms, is significantly further away. The map below shows a single school zone that abuts a large pond and a cemetery. Given the arrangement of properties, a person living in the marked house would need to travel 3,200 feet to get to the closest part of the school property (without trespassing or navigating major obstacles). Getting to the closet part of the actual school building would require a total travel distance of 4,200 feet. Yet the law requires that the exclusion zone be measured in a straight line from the edge of the property, regardless of the obstacles in between.
Figure 3.
Another example from my Geography of Punishment report is even more extreme: The 1,000 foot zone from a high school reaches across the Connecticut River (the largest river in all of New England) to reach a different town. (See Figure 4.) Although the legislature assumed that all people within 1,000 feet of the school would have

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proximity to children, the driving distance between the two points in this example is 4.4 miles, which would take about 11 minutes to travel by car.
Figure 4.
• Schools are not a single point at the front entrance, but instead tend to be large complexes that include playing fields, auditoriums, etc. A single 1,000 foot zone around a school is generally considerably larger than a circle with a 1,000 foot radius and will render off limits far more housing and employment opportunities than a simple 1,000 foot circle.
• Residence and workplaces are considerably larger than the single point at their entrance. As can be seen in the below illustration prepared for the Whitaker v Perdue case, even when the zone is centered around an actual point (a bus stop) the resulting exclusion zone is considerably larger than a simple circle. The 1,000 foot distance is itself a circle around a bus stop, but the properties that are within the zone (in peach) make the exclusion area significantly larger.

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Figure 5. This illustration shows that drawing simple circles with a radius of 1,000 feet understates the actual impact of the exclusion zones.
C. Exclusion zones have the practical effect of severely restricting access to housing and employment, and of limiting the ability to engage in normal human activity.
My work mapping exclusion zones has shown that such zones render large portions of the affected jurisdiction off-limits. As a result, whatever activity is limited (e.g. housing, employment, spending time in parks, etc), is significantly restricted for those subject to exclusion. For example, my prior research has shown:
• In the Whitaker v. Perdue case, I demonstrated that Georgia’s HB1059, in large part due to the inclusion of school bus stops on the list of prohibited places, rendered all urban areas, all suburban areas, and most of the inhabitable portions of rural areas off limits to people on the registry.
• In my study of the Revere Massachusetts city ordinance6 which prohibited certain offenders from living within 1,000 linear feet of a public or private school, nursery school, day care center, kindergarten, or playground, I found that at least 99% of the city’s residential properties were off limits
6 See my affidavit of August 14, 2006 at http://www.prisonpolicy.org/articles/affidavit08142006.html and the accompanying map at http://www.prisonpolicy.org/atlas/revere528060.html.

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to people on the registry. I did not perform a formal analysis of the impact on employment opportunities, but it is relevant here to note that the only parts of the city not within 1,000 feet of a protected place were parts of a fuel oil terminal, parts of a race track, undeveloped woodlands and a marsh.
• My research on Massachusetts’ 1,000 foot sentencing enhancement zones showed that these zones disproportionately cover lower-income and lower-rent areas off-limits to people on the registry.7
The key factors in evaluating the scope of an exclusion zone are the combination of the size of the zones and the number of places that are to be protected. While large-sized zones and multiple protected places can make entire cities and towns off-limits, even smaller zones around one or two protected places can make significant portions of a city or town off-limits.
5. Efforts to conduct similar research in Michigan
Despite my considerable experience developing methodologies to study how legislation that regulates activities in special geographic zones operates, I have been unable to secure the data needed to perform a similar analysis of Michigan’s laws in a sample city or county.
As a preliminary matter, there do not appear to be any unified maps of the prohibited areas. Michigan state and local law enforcement claim to measure the distance of potential properties to protected places one at a time in an online system roughly equivalent to using the measuring tool in Google Earth. This is insufficient to tell someone on the registry which places they should avoid. Similarly, there is not even one centralized list of protected places under the statute, although one could be built from other data sources with a reasonable likelihood of being mostly complete.
7 See the section in The Geography of Punishment entitled “An ‘urban effect’: Interlocking sentencing enhancement zones blanket urban areas and barely touch rural populations” for my research on density, poverty and educational attainment as it relates to Massachusetts’ sentencing enhancement zone statute available at http://www.prisonpolicy.org/zones/urban.html .

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I attempted to prepare an analysis of how the sex offender registry law is applied in two counties in Michigan: Kent and Ingham. These counties were chosen for their diversity in density and land uses and would have been representative samples to apply to the state as a whole. Unfortunately, the counties refused to make available the necessary data showing the property lines of each property, making it impossible to prepare accurate maps of the exclusion zones.8
The difficulties I encountered while attempting to map Michigan’s exclusion zones speaks to the difficulty that registrants face in complying with the exclusion zone laws. If I, despite my specialized skills and software, cannot develop a map of exclusion zones for two counties, it is highly unlikely that a typical registrant would be able to determine what places she or he must avoid around the state.
6. Analysis of Michigan Statutes during Discovery.
Assuming that it is possible to obtain the necessary parcel data through the discovery process, I plan to show the Court the number, size, and scope of sample exclusion zones in Michigan. I would then be able to overlay the protected areas over U.S. Census data and other data to demonstrate the portion of the sample county that is rendered off-limits by Michigan’s sex offender registry law. I would be able to do this by analyzing factors such as:
• Portion of the county’s population; • Portion of the county’s housing stock; • Portion of the county’s affordable housing stock.
Based on my experience with performing similar analyses of school zones elsewhere, I anticipate that the analysis will show that Michigan’s sex offender residence exclusion zones cover large portions of urban and suburban areas and somewhat smaller portions of rural areas. Many of the areas that are theoretically
8 The data that I sought exists as government records held by Kent and Ingham Counties. Both counties make this data available in a free online mapping system designed for typical uses like identifying abutters. This is insufficient for identifying how 1,000-foot zones around hundreds or thousands of protected places overlap. The only way to answer that question is by accessing the parcel database in a mapping program with more features.

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available will likely be industrial or agricultural in nature, and therefore not appropriate for housing.
I also expect that the exclusion zones will be irregular shapes. If this is the case, it would support a finding that it is difficult or impossible to identify and avoid the exclusion zones when moving about the state.
Once I am able to build a geographic database of the exclusion areas in sample counties, I will apply this map to existing datasets on employment patterns (if they can be obtained) to produce estimates of the size and nature of the employment impact of the law. I would expect to find that a significant number of jobs are rendered off-limits to people on the registry due to the exclusion zones.
Pursuant to 28 U.S.C. § 1746, I state under penalty of perjury that the above statements are true and correct to the best of my knowledge, information, and belief.
Peter Wagner Executive Director Prison Policy Initiative PO Box 127 Northampton MA 01061 (413) 961-0002 pwagner@prisonpolicy.org
March 13, 2012

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ATTACHMENT A CURRICULUM VITAE

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PETER J. WAGNER
69 Garfield Ave, Floor 1, Easthampton MA 01027 pwagner@prisonpolicy.org (413) 527-0845

EDUCATION

Western New England College School of Law Juris Doctor, May 2003

Springfield, MA

University of Massachusetts at Amherst, B.A., August 1994 Major: Social Thought and Political Economy Minor: African-American Studies

Amherst, MA

WORK EXPERIENCE

Prison Policy Initiative

Springfield, Easthampton, MA

Co-Founder, Exec. Director, Asst. Director

September 2001 – Present

Co-founded organization committed to documenting how mass incarceration affects individuals, communities, and the national welfare. Lead a national movement to change the way that the Census Bureau counts people in prison, and the way that state and local governments use Census prison counts to draw legislative districts.

Civil Liberties Union of Massachusetts Mapping Consultant

Boston, MA June 2009 – Present

Assist litigators with evaluating potential challenges to overly broad city ordinances in Barnstable, Lynn and Waltham, showing that city overreached and rather than regulating where people on the sex offender registry could live, the cities barred people on the registry from living anywhere.

Southern Center for Human Rights Mapping Consultant

Atlanta, GA June 2006 – September 2009

Prepared maps and analysis, and testified twice for plaintiffs in federal court in the case Whitaker v. Perdue. The case challenged Georgia’s ban on people on the sex offender registry from living within 1,000 feet of schools, churches and a long list of other places including school bus stops. My testimony showed that because almost every tract of habitable housing in Georgia was served by one of 350,000 school bus stops, the legislature unwittingly declared all urban areas, all suburban areas and most rural areas off limits to people on the registry.

Open Society Institute Fellowship Program Consultant

New York City January – June 2007

Assist Soros Justice Fellows with a range of research and technical support needs, including combing databases, developing educational materials and using quantitative research to tell stories and illustrate problems to diverse audiences.

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Peter Wagner

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Prison Policy Initiative

Cincinnati, OH; Northampton, MA

Open Society Institute Soros Justice Fellow

June 2003 – May 2005

Conducted a national research and advocacy project to quantify, publicize, and reform the current practice of utilizing the Census to shift political power away from poor and minority communities and into the hands of prison expansion proponents. Conducted state-specific analyses of the impact of prison-based gerrymandering on state legislative redistricting and develop both national and state-specific solutions.

Center for First Amendment Rights Webmaster

Hartford, CT December 2000 – May 2003

Law Clerk Magistrate Judge Kenneth P. Neiman

Springfield, MA January – May 2003

Jessup International Moot Court Team Member

Springfield, MA October 2002 – February 2003

Anti-Discrimination Clinic

Springfield, MA

Student Attorney

August 2002 – December 2002

Represented victims of employment discrimination and public accommodations

discrimination in proceedings before the Massachusetts Commission Against

Discrimination. Performed research for the Attorney General’s Office on housing

discrimination cases.

Capital Defender Office

Albany, NY

Legal Intern

June 2002 – August 2002

Performed legal research on the constitutionality of a jury “life qualification”

statute. Digitized and organized mitigation evidence. Transcribed witness

interviews.

Massachusetts Correctional Legal Services

Boston, MA

Legal Intern

May 2001 – October 2001

Investigated prisoner complaints of poor medical care; conducted medical

advocacy and prepared referrals to outside attorneys for potential medical

malpractice litigation. Investigated a major disturbance at a super-maximum

facility and represented the alleged ring-leader against 54 charges at his

disciplinary hearing and on administrative appeal.

TEACHING
EXPERIENCE

Smith College

Northampton, MA

Instructor

January 2003, 2005, 2006, 2011, 2012

Designed and taught “Prison Industrial Complex Through Film” non-credit

course.

Smith College

Northampton, MA

Instructor

January 2002, 2004, 2008

Designed and taught “Constitutional Law Through Film” non-credit course.

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Peter Wagner

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HONORS & AWARDS

Soros Justice Postgraduate Fellow, 2003-2005 Massachusetts Bar Foundation Legal Intern Fellow, Summer 2001 Partial tuition academic scholarship, 1999-2003 Recipient, Law Alumni Scholarship, Fall 2002 Recipient, Katherine M. Connell Scholarship, Fall 2001 Deans’ List, Spring 2002

PUBLISHED REPORTS

Primer for reporters on county or municipal redistricting & prison-based gerrymandering, by Peter Wagner, Prison Policy Initiative, March 2011

Preventing Prison-Based Gerrymandering in Redistricting: What to Watch For, by Peter Wagner and Brenda Wright, Prison Policy Initiative and D!mos, February 23, 2011

Aleks Kajstura and Peter Wagner, Importing Constituents: Incarcerated People and Political Clout in California, Prison Policy Initiative, March 2010

Peter Wagner and Christian de Ocejo, Importing Constituents: Incarcerated People and Political Clout in Connecticut, Prison Policy Initiative, March 2010

Peter Wagner, Aleks Kajstura, Elena Lavarreda, Christian de Ocejo, and Sheila Vennell O’Rourke, Fixing prison-based gerrymandering after the 2010 Census: A 50 state guide, Prison Policy Initiative, March 2010

Peter Wagner and Olivia Cummings, Importing Constituents: Incarcerated People and Political Clout in Maryland, Prison Policy Initiative, March 4, 2010

Brett Blank and Peter Wagner, Importing Constituents: Prisoners and Political Clout in Illinois, Prison Policy Initiative, February 2010

Elena Lavarreda, Peter Wagner and Rose Heyer, Importing Constituents: Prisoners and Political Clout in Massachusetts, Prison Policy Initiative, October 6, 2009

Peter Wagner and Elena Lavarreda, Importing Constituents: Prisoners and Political Clout in Oklahoma, Prison Policy Initiative, September 21, 2009

Peter Wagner and Elena Lavarreda, Importing Constituents: Prisoners and Political Clout in Pennsylvania, Prison Policy Initiative, June 26, 2009

Aleks Kajstura, Peter Wagner and Leah Sakala, Reaching too far, coming up short: How large sentencing enhancement zones miss the mark, Prison Policy Initiative, January, 2009

Peter Wagner, Phantom Constituents in Maine’s Regional School Unit 13: How the Census Bureau’s outdated method of counting prisoners harms democracy, Prison Policy Initiative, January 15, 2009

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Aleks Kajstura, Peter Wagner and William Goldberg, The Geography of Punishment: How Huge Sentencing Enhancement Zones Harm Communities, Fail to Protect Children, Prison Policy Initiative, July 2008

John Hejduk and Peter Wagner, Importing Constituents: Prisoners and Political Clout in Wisconsin, Prison Policy Initiative, March, 2008

Peter Wagner and JooHye DellaRocco, Phantom Constituents in Tennessee’s Boards of County Commissioners, Prison Policy Initiative, February 21, 2008

Brenda Wright and Peter Wagner, Report to U.N. Committee for the Elimination of Racial Discrimination that U.S. Census practices dilute votes of minority populations, Prison Working Group, December 2007

Peter Wagner, Meghan Rudy, Ellie Happel and Will Goldberg, Phantom constituents in the Empire State: How outdated Census Bureau methodology burdens New York counties, Prison Policy Initiative, July 18, 2007

Peter Wagner, Democracy Toolkit: Interactive tools to help rural citizens determine if prison populations in legislative districts are diluting their right to equal representation, Prison Policy Initiative, April 2007

Peter Wagner, Eric Lotke and Andrew Beveridge, Why the Census Bureau can and must start collecting the home addresses of incarcerated people, Prison Policy Initiative, February 10, 2006

Brenda Wright and Peter Wagner, Brief Amici Curiae In Support Of PlaintiffAppellant Jalil Abdul Muntaqim, a/k/a/Anthony Bottom, Urging Reversal Of The District Court, Prison Policy Initiative and National Voting Rights Institute, January 28, 2005

Peter Wagner, Importing Constituents: Prisoners and Political Clout in Nevada Prison Policy Initiative and the Progressive Leadership Alliance of Nevada, December 15, 2004

Peter Wagner, Importing Constituents: Prisoners and Political Clout in Montana, Prison Policy Initiative, December 14, 2004

Peter Wagner and Rose Heyer, Importing Constituents: Prisoners and Political Clout in Texas, Prison Policy Initiative, November 8, 2004

Peter Wagner, Jim Crow in Massachusetts? Prisoner disenfranchisement, Prison Policy Initiative, October 31, 2004

Peter Wagner, Actual Constituents: Students and Political Clout in New York, Prison Policy Initiative, October 6, 2004

Peter Wagner and Rose Heyer, Importing Constituents: Prisoners and Political Clout in Ohio, Prison Policy Initiative, July 6, 2004

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Rose Heyer and Peter Wagner, Too big to ignore: How counting people in prisons distorted Census 2000, Prison Policy Initiative, April 13, 2004

Peter Wagner, The Prison Index: Taking the Pulse of the Crime Control Industry, Prison Policy Initiative and Western Prison Project, April 2003

Peter Wagner, Importing Constituents: Prisoners and Political Clout in New York, Prison Policy Initiative, April 22, 2002.

BOOK CHAPTERS

Gary Hunter and Peter Wagner, Prisons, Politics and the Census, in Prison Profiteers: Who Makes Money from Mass Incarceration, edited by Tara Herivel and Paul Wright, The New Press (2008)

Peter Wagner, Skewing Democracy: Where the Census Counts Prisoners, in The Emerging Agenda: Poverty and Race in America, edited by Chester Hartman, Lexington Books (2006)

EDITED ARTICLES Peter Wagner, Breaking the Census: Redistricting in an era of mass incarceration, William Mitchell Law Review, Spring 2012 (forthcoming)

Peter Wagner, Prison Populations Create Complications at Redistricting Time, Missouri Municipal Review, January 2012

Eric Lotke and Peter Wagner, Prisoners of the Census: Electoral and Financial Consequences of Counting Prisoners Where They Go, Not Where They Come From, Pace Law Review, Volume 24, Number 2 (Spring 2004)

FILM
APPEARANCES

Gerrymandering, directed by Jeff Reichert, Green Film Company (2010)

PRESENTATIONS (SELECT)

Keynote address: Prison Branches: The Untapped Resource, 101st NAACP Convention Adjunct Event, Crossroads Correctional Center, (Cameron, MO) July 11, 2010
Presentation: Prisons, Redistricting, and the Census: New Options for States and Localities, Congressional briefing, Rayburn Congressional Office Building, (Washington, D.C.) April 27, 2010
Panelist: Census and Redistricting, NAACP Continuing Legal Education Seminar, 100th NAACP Convention, (New York City) July 13, 2009
Panelist: Technical solutions to avoid prison-based gerrymandering, National Conference of State Legislature’s Legislative Summit, (Philadelphia, PA) July 21, 2009
Workshop: Legislative options to avoid prison-based gerrymandering, Legislative Black Caucus of Maryland, (Annapolis, MD) October 2, 2009

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Keynote address: The U.S. Prison System: Community and Political Impacts, Brown University (Providence, RI) December 3, 2005
Keynote address: Coming Home: Addressing the Issues Faced by Prisoners as They Re-enter the Community, Community Service Society of New York (New York City) December 10, 2005
Panel presentation: Prisoners of the Census: Criminal Justice Populations in Census Data, Crime Mapping Research Conference, National Institute of Justice (Savannah, GA), September 9, 2005
Panel presentation: Felony disenfranchisement and its impact on the Voting Rights Act, 40 Years After the Voting Rights Act, The Democracy Project, (Selma, AL) August 5, 2005
Panel presentation: Protecting and expanding voting rights, NAACP Continuing Legal Education Seminar, NAACP Convention (Milwaukee, WI) July 11, 2005
Presentation: Changing how prisoners are counted in the Census, presentation to the Residence Rules in the Decennial Census Panel at the National Academy of Sciences (Washington, D.C.) June 2, 2005
Presentation: Prisoners, the Census and the Political Geography of Mass Incarceration, Prisons 2004: Prisons and Penal Policy: International Perspectives (City University London, England) June 25, 2004
Panel presentation: Prisoners and Redistricting, Accuracy Counts: Incarcerated People & the Census Congressional Briefing (Washington, D.C.) April 14, 2004
Panel presentation: Prisoners and the Census, History’s Scorecard: The Role of the Census Bureau in America’s Development, Census Bureau (Washington D.C.) March 5, 2004
Presentation: Prisoners and the Census, U.S. Census Policy and Prisoners Working Meeting, Ford Foundation (New York City) June 30, 2003
Panel presentation: Felon Disenfranchisement: Black Codes in the 21st Century, Africana Studies Against Criminal Injustice Conference (New York City) April 11, 2003
Panel presentation: What’s in a Number: Diluted Census and Voting Representation, National Summit on the Impact of Incarceration on Black and Latino Families and Communities (Washington D.C.) June 29, 2002
Keynote address: Unlocking Prisons: Re-Thinking the Crisis, Creating a Network for Action Conference, Harvard University (Cambridge, MA) April 27, 2002
Panel presentation: Felon Disenfranchisement and the Three-Fifths Clause, Rebellious Lawyering Conference, Yale University (New Haven, CT) February 18, 2001

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LEGISLATIVE TESTIMONY

Testimony in support of SB400, the “No Representation Without Population Act” before the Education, Health & Environmental Affairs Committee of the Maryland State Senate (Annapolis, MD) March 4, 2010
Testimony on the 2010 Census: Enumerating People Living in Group Quarters, before the Subcommittee on Information Policy, Census and National Archives, Committee on Oversight and Government Reform, United States House of Representatives (New York, NY) February 22, 2010
Testimony in support of the Census Correction Amendment, before the Committee on State Affairs and Homeland Security, Wisconsin House of Representatives (Madison, WI) September 15, 2009
Testimony in support of ending prison-based gerrymandering, before the Assembly Standing Committee on Governmental Operations and the Assembly Legislative Task Force on Demographic Research and Reapportionment, New York State Assembly (Albany, NY) October 24, 2007
Testimony in support of ending prison-based gerrymandering, before the Assembly Standing Committee on Governmental Operations and the Assembly Legislative Task Force on Demographic Research and Reapportionment, New York State Assembly (New York, NY) October 17, 2006
Testimony on Adjusting Prisoner Census Enumeration for Purposes of State Legislative Redistricting, New York State Legislative Task Force on Demographic Research and Reapportionment (Bronx, NY) March 14, 2002

PROFESSIONAL ASSOCIATIONS

Member of Massachusetts Bar, BBO# 662207

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EXHIBIT 12 DECLARATION OF ANNE YANTUS, J.D., ON THE IMPACT OF
REGISTRATION ON PLEA BARGAINING

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EXHIBIT 13 TEXAS ASSOCIATION OF COUNTIES REPORT ON COSTS TO LOCAL
GOVERNMENTS OF IMPLEMENTING THE ADAM WALSH ACT

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COSTS  TO  LOCAL  GOVERNMENTS  FROM  IMPLEMENTING  THE  ADAM  WALSH  ACT  
Tim  Brown,  Texas  Association  of  Counties  
October  19,  2010  
Executive  Summary  
The  Adam  Walsh  Child  Protection  and  Safety  Act  of  2006  (AWA)  was  signed  by  President   George  Bush  on  July  27,  2006,  25  years  to  the  day  after  6-­‐‑year-­‐‑old  Adam  Walsh  disappeared   from  a  Florida  mall.    The  AWA  includes  provisions  for  a  national  Sex  Offender  Registration  and   Notification  Program  (SORNA),  to  standardize  registration  and  notification  requirements  across   the  country  while  also  providing  greater  offender  accountability  and  increased  sanctions  for   non-­‐‑compliance.    States  that  fail  to  substantially  implement  the  SORNA  guidelines  face  a  10   percent  reduction  in  their  Byrne  Justice  Assistance  Grant  funds,  used  to  support  multi-­‐‑ jurisdiction  drug  task  forces  and  to  provide  other  support  to  local  law  enforcement  agencies.    It   is  unclear  to  what  extent  cities  and  counties  will  be  impacted  by  this  potential  reduction.  
In  response  to  requests  from  State  Sen.  Florence  Shapiro  and  State  Sen.  John  Whitmire,  the   Texas  Municipal  League  (TML)  and  the  Texas  Association  of  Counties  (TAC)  collected  data  on   the  costs  associated  with  sex  offender  registration  from  75  local  law  enforcement  agencies.      
Two  main  difficulties  appear  to  have  prevented  other  cities  and  counties  from  participating  in   the  survey.    First,  many,  if  not  most,  local  law  enforcement  agencies  do  not  keep  records  with   the  level  of  detail  required  to  answer  some  of  the  questions  or  their  record  systems  are  not   designed  for  easy  retrieval  of  the  data  needed.    Second,  the  survey  asked  local  officials  to   predict  how  their  agencies  would  be  impacted  by  state  laws  which  have  not  been  drafted,  much   less  enacted.    This  required  a  certain  amount  of  creative  estimation  on  their  part.      
Based  on  the  responses,  TAC  and  TML  estimate  that  implementing  SORNA  would  cost  those   specific  75  cities  and  counties  an  additional  $1.3  million  per  year  in  nominal  dollars  (not   adjusted  for  inflation).    A  simple  extrapolation  based  on  the  number  of  sex  offenders  currently   registered,  indicates  that,  statewide,  cities  and  counties  would  be  hit  with  an  additional  $14   million  per  year  in  costs  for  registering  sex  offenders.      
Extrapolating  from  a  similar  study  conducted  by  the  Austin  Police  Department  suggests  that   total  costs  would  be  around  twice  this  amount.    However,  there  is  always  difficulty  in   extrapolating  from  a  small  sample;  particularly  a  sample  size  of  one.    It  is  encouraging  therefore   that  the  two  extrapolations  are  so  similar  and  lends  confidence  in  the  accuracy  of  the  $14  million   statewide  estimate  despite  the  number  of  assumptions  used  in  its  calculation.  
1  
  

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Background  
The  Adam  Walsh  Child  Protection  and  Safety  Act  of  2006  (AWA)  was  signed  by  President   George  Bush  on  July  27,  2006,  25  years  to  the  day  after  6-­‐‑year-­‐‑old  Adam  Walsh  disappeared   from  a  Florida  mall.    According  to  Congress,  the  AWA  seeks  to  establish  a  “comprehensive   national  system  for  the  registration  [of  sex  offenders  and  offenders  against  children].”  
In  addition  to  setting  minimum  national  standards  for  state  sex  offender  registries  and   notification  laws,  AWA  has  the  potential  to  overhaul  sex  offender  laws  across  the  nation.    The   act,  which  is  divided  into  seven  titles,  calls  for  a  more  detailed,  uniform  and  nationalized   system  of  sex  offender  registries;  addresses  issues  of  child  pornography,  Internet  safety  and   civil  commitment;  creates  grants  for  electronic  monitoring;  and  revises  the  Immigration  and   Nationality  Act  to  address  immigrant  offenders.  
By  creating  the  first  federal  involuntary  civil  commitment  law  targeting  “sexually  dangerous   persons”  and  creating  a  national  child  abuse  and  neglect  registry,  the  AWA  substantially   overhauled  federal  registration  and  community  notification  policy  –  and  in  the  process   expressly  repealed  the  Jacob  Wetterling  Act,  Megan’s  Law  and  the  Lychner  Act.  
The  AWA  includes  provisions  for  a  national  Sex  Offender  Registration  and  Notification   Program  (SORNA),  which  seeks  to  standardize  registration  and  notification  requirements   across  the  country  while  also  providing  greater  offender  accountability  and  increased  sanctions   for  non-­‐‑compliance.    States  that  fail  to  substantially  implement  the  SORNA  guidelines  will  face   a  10  percent  reduction  in  their  Byrne  Justice  Assistance  Grant  funds,  which  are  used  to  support   multi-­‐‑jurisdiction  drug  task  forces  and  to  provide  other  support  to  local  law  enforcement   agencies.    It  is  unclear  to  what  extent  cities  and  counties  will  be  impacted  by  this  potential   reduction.  
Even  with  this  penalty  looming,  few  states  have  been  certified  AWA  compliant;  some  states   believe  the  cost  of  compliance  outweighs  the  loss  of  funds.    States  are  also  concerned  about  the   act’s  juvenile  registration  and  reporting  requirements  and  certain  new,  retroactive  registration   requirements.1    
                                                                                                          
1  SEARCH.  “Survey  finds  no  state  in  position  to  comply  with  July  2009  deadline  for  Walsh  Act’s   expanded  sex  offender  monitoring.”  Available  from:  www.search.org/about/news/2009/survey.asp.   Accessed  18  August  2010.  
2  
  

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Some  of  those  concerns  were  partially  addressed  in  supplemental  guidelines  published  May  14,   2010.2    Under  the  supplement,  states  would  no  longer  need  to  register  all  offenders  convicted   prior  to  SORNA'ʹs  implementation  by  the  state.    A  state  may  be  judged  to  have  substantially   implemented  SORNA  if  that  state  registers  all  prior  convicted  persons  who  fall  into  one  of  the   following  four  categories:  
1. Offenders  who  are  incarcerated;   2. Offenders  who  are  on  probation  or  parole;   3. Offenders  who  are  presently  registering;  and   4. Offenders  who  are  convicted  of  a  new  felony  offense  or  of  any  type  of  sex  offense.  
The  supplemental  guidelines  leave  open  the  possibility  that  some  states  might  choose  to  go   beyond  the  minimum  requirements  and  attempt  to  extend  SORNA  to  more  cases  retroactively.  
The  Survey  
The  Texas  Senate  is  currently  studying  the  costs  associated  with  the  changes  in  state  law   required  to  be  certified  compliant  with  SORNA.    TAC  and  the  Texas  Municipal  League  (TML)   were  asked  to  gather  information  on  costs  associated  with  that  compliance  since  sex  offenders   are  required  to  register  with  their  local  law  enforcement  office  (city  or  county  depending  on   their  place  of  residence).    Working  with  State  Sen.  Florence  Shapiro,  State  Sen.  John  Whitmire   and  TML,  TAC  developed  an  online  Adam  Walsh  Act  Costs  Survey  to  gather  information   directly  from  county  sheriffs  and  municipal  police  chiefs.  
TAC  contacted  the  sheriffs  in  early  August  requesting  their  assistance  with  the  survey.    At   about  the  same  time,  TML  contacted  the  police  chiefs  for  their  assistance.      
The  online  survey  was  closed  on  September  17.    By  that  time  127  responses  had  been  received.     Due  to  problems  with  duplication  of  responses  and  missing  data  (responses  that  included   contact  information  but  no  other  data),  only  75  responses  were  found  to  be  usable  for  the   analysis.    The  low  response  rate  was  not  unexpected  due  to  the  complexity  of  the  questions   asked  on  the  survey.    In  many  cases,  it  appears  partial  and  duplicative  responses  were  created   when  respondents  started  the  survey  only  to  log  off  to  research  the  data  needed  to  complete  the   survey.    In  logging  back  on  to  the  survey,  a  new  survey  response  was  initiated.      
                                                                                                          
2  “Supplemental  Guidelines  for  Sex  Offender  Registration  and  Notification.”  Federal  Register.  14  May   2010:  2010-­‐‑11665.  Available  from:  www.thefederalregister.com/d.p/2010-­‐‑05-­‐‑14-­‐‑2010-­‐‑11665.  Accessed  18   August  2010.  
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Presumably,  in  some  cases,  the  complexity  of  the  questions  was  too  great  and  local  officials  did   not  log  back  on  to  complete  the  survey  after  they  saw  how  difficult  it  would  be  to  answer  those   questions.    For  those  who  were  able  to  respond,  there  were  two  main  difficulties.    First,  many,  if   not  most,  local  law  enforcement  agencies  do  not  keep  records  with  the  level  of  detail  required  to   answer  some  of  the  questions  or  their  record  systems  are  not  designed  for  easy  retrieval  of  the   data  needed.      
Second,  the  survey  asked  local  officials  to  predict  how  their  agencies  would  be  impacted  by   state  laws  which  have  not  been  drafted,  much  less  enacted.    This  required  a  certain  amount  of   creative  estimation  on  their  part.    It  is  likely  that  some  will  have  estimated  too  high  while  others   will  have  estimated  too  low.    Given  the  number  of  responses,  however,  it  seems  reasonable  that   the  high  and  low  estimates  should  balance  out  overall.      
The  remainder  of  this  report  will  focus  on  the  75  usable  responses  only  unless  otherwise  stated.  

Survey  Results  

Survey  responses  were  received  from  42  cities  and  23  counties.    In  addition,  another  10   responses  were  received  from  agencies  representing  multiple  jurisdictions.    In  some  cases,  one   law  enforcement  agency,  either  a  county  or  a  municipality,  may  be  responsible  for  registering   sex  offenders  for  areas  outside  of  their  normal  jurisdiction.    For  example,  in  a  rural  area,  the   county  sheriff  may  assume  responsibility  for  registering  sex  offenders  who  reside  in  some  of  the   small  towns  within  the  county.    Alternately,  a  larger  municipality  may  assume  responsibility   for  registering  sex  offenders  who  reside  in  some  of  the  surrounding  towns  or  suburbs,  or  in  the   unincorporated  areas  of  the  county.  

The  following  questions  asked  on  the  survey  are  shown  with  a  summary  of  the  responses  by   type  of  local  government.    Note  that  there  is  no  overlap.    If  a  county  responded  for  itself,  then   the  data  does  not  include  any  incorporated  areas  of  that  county.    Similarly,  if  a  municipality   responded  for  itself,  then  the  data  does  not  include  the  unincorporated  areas  of  the  county  or   counties  in  which  that  city  is  found.    If  a  local  government  reported  for  multiple  jurisdictions,   then  there  was  no  report  for  the  individual  municipalities  or  counties  that  made  up  that  group.  

Numbers  in  parentheses  indicate  how  many  responses  were  received  on  the  particular  question   from  that  type  of  local  government.  

1.   What  is  the  total  number  of  sex  offenders  currently  registered  in  your  jurisdiction?      

           

Cities  (42)   1,526  

Counties  (22)   1,600  

Multiple  (9)  

384  

  

  

           

        

  

  

  

     

  

           
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2.   In  calendar  year  2009,  how  many  sex  offenders  registered  with  your  department?  

Cities  (39)  

Counties  (23)  

Multiple  (9)  

     

974  

1,789  

319  

  

           

      The  City  of  Port  Arthur  (population  56,694)  noted  that  records  ar  e  not  kept  tha t    woul  d        

enable  them  to  provide  the  total  number  of  registrations  for  the  calendar  year.    

     

   3.   H   o w    many  verifications  did  your  department  perform  in  calendar  y   ear  2009?              

Cities  

Counties  

Multiple  

Required  Frequency  

  

     

1,239  (38)  

1,163  (22)  

328  (10)  

Annual  verifications?        

  

  

276  (32)  

350  (21)  

82  (9)  

90  day  verifications?        

  

  

10  (26)  

20  (19)  

0  (9)  

30  day  verifications?        

  

  

     

   4.   H   o w    many  additional  in - ­‐‑person  appearances   d  id  your  department  handl e    for  chang   e  in            address,  change  in  employment,  or  exit  registrations  (leaving  jurisdiction)?  Do  not  include  visits   for  registration  or  verification  that  were  counted  in  the  two  previous  questions  on  this  page.  

Cities  (37)  

Counties  (21)  

Multiple  (10)  

     

799.5  

1,204  

220  

  

           

     

  

           

   5.   H   o w    many  of  the  registe  red  sex  offenders  that    are  currently  residin g    in  your  juris d  iction     hav e    a  

post  ten  year  registration?  

Cities  (39)  

Counties  (22)  

Multiple  (9)  

     

269  

232  

     

36  

  

  

                       

   6.   H   o w    many  of  the  registe  red  sex  offenders  that    are  currently  residin g    in  your  juris d  iction     hav e    a  

lifetime  registration?  

           

Cities  (38)   1,206  

Counties  (22)   1,139  

Multiple  (9)  

345  

  

  

                       

   7.   H   o w    many  of  the  curren t  ly  registered  sex  offe  nders  in  your  jurisdic  tion  have  been    conv i cted      of  what  SORNA  calls  Tier  3  offenses?    

Cities  (37)  

Counties  (21)  

Multiple  (9)  

  

     

347  

762  

187  

  

           

      The  City  of  Granbury  (population  8,872)  noted  that  they  have  an    offender  conv  icted  o   f  onl  ine    

solicitation  (one  of  the  13  offenders  currently  registered  in  the  city).    They  were  unable  to  

determine  into  which  Tier  to  place  this  individual.    Granbury  noted  that  they  also  have  

offenders  that  move  back  and  forth  from  the  city  to  the  county.    This  may  make  it  appear  

that  there  are  more  offenders  by  increasing  the  number  of  verifications  reported  for  a  

calendar  year  since  the  offenders  must  register  their  new  address  with  each  move.    However,  

each  of  these  verifications  occurs  at  a  cost  to  the  city.  

  

Comal  County  noted  that  they  did  not  attempt  to  categorize  their  registered  sex  offenders  by  

the  SORNA  Tiers.    

     

        

  

  

  

           

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8.   How  many  of  the  currently  registered  sex  offenders  in  your  jurisdiction  have  been  convicted  of   what  SORNA  calls  Tier  2  offenses?  Do  not  include  anyone  counted  in  the  previous  question  for   conviction  of  a  Tier  3  offense.  

Cities  (35)  

Counties  (20)  

Multiple  (10)  

     

155  

187  

214  

  

           

  

   See  the  notes  under  question  7.    

  

           

     

   9.   H   o w    many  of  the  curren t  ly  registered  sex  offe  nders  in  your  jurisdic  tion  have  been    conv i cted  of    

what  SORNA  calls  Tier  1  offenses?    Do  not  include  anyone  counted  in  the  two  previous  

questions  for  conviction  of  a  Tier  2  or  a  Tier  3  offense.  

Cities  (35)  

Counties  (21)  

     

348  

174  

  

   See  the  notes  under  question  7.  

     

Multiple  (10)  

21  

  

  

                       

   10.   H   o w    many  Full-­‐‑Time  Eq  uivalents  (FTEs)  work     on  sex  offender  regi s  trations  and  v  erifica   tions    in   your  department?    Full-­‐‑time  equivalent  (FTE)  is  a  way  to  measure  total  employee  involvement.     An  FTE  of  1.0  means  that  the  person  is  equivalent  to  a  full-­‐‑time  worker.    An  FTE  of  1.0  can  also   indicate  that  you  have  two  half-­‐‑time  employees  who  together  add  up  to  one  FTE  or,  alternately,   that  two  full-­‐‑time  employees  each  spend  half  their  time  working  on  registrations  and   verifications.    An  FTE  of  0.5  signals  the  equivalent  of  a  single  half-­‐‑time  employee  assigned  to   these  tasks.  

Cities  (39)  

Counties  (21)  

Multiple  (10)  

     

36.9625  

17.95  

7.81  

  

           

      This  question  attempted  to  determine  the  total  amount  of  manpo  wer  dedicated     to  sex           

offender  registration  and  verifications  for  the  responding  law  enforcement  agencies.    

Although  instructions  were  provided  to  explain  the  concept  of  an  FTE,  the  instructions  did  

not  always  prove  adequate.      

  

The  City  of  Seagoville  (population  12,319)  reported  3  FTEs,  but  in  a  comment  noted  that  they  

“have  so  few  offenders  this  does  not  take  very  much  time  out  of  their  normal  duties  as  

records  clerks.”    

  

Galveston  County  noted  that  they  had  changed  from  0.5  FTE  in  2009  to  1.0  FTE  in  2010,  

although  at  a  lower  salary.  

  

Grimes  County  entered  “0”  in  response  to  this  question,  but  noted  that  they  use  one  

investigator  to  maintain  the  sex  offender  case  load  and  that  approximately  20  percent  of  that  

individual’s  workload  is  devoted  to  this  effort.  

     

           

     

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11.   What  was  the  total  Fiscal  Year  2009  cost  for  registration  and  verification  of  sex  offenders  in  your   jurisdiction?    

Cities  

Counties  

Multiple  

Cost  Category  

  

  

$842,950  (34)  

$585,568  (18)  

$223,205  (8)  

Salaries  and  benefits          

     

$88,041  (29)  

$25,425  (16)  

$25,400  (6)  

Other  costs    

     

     

$930,991  

$610,993  

$248,605  

Total  

     

      Respondents  were  not  asked  for  the  total.    Total  cost  was  calculated  from  their  responses  b   y     

adding  the  costs  from  each  category.  

  

One  city,  Paris,  noted  that  they  combined  their  total  costs  of  $42,300  which  were  reported  as  

salaries  and  benefits  rather  than  in  separate  categories.  

     

   12.   S   OR   NA  requires  all  offenders  to  register,  and  maintain  their  registration  as  required,  in  the        

jurisdictions  where  they  live,  work,  and/or  attend  school.  This  may  require  some  offenders  to  

register  in  multiple  jurisdictions.          In  addition,  some  offenders  who  are  not  currently  required  

to  register  will  have  to  under  SORNA.  This  includes  individuals  who  are  no  longer  required  to  

register  under  current  Texas  law  as  well  as  those  who  may  be  convicted  under  new  laws   required  to  implement  SORNA.        Please  provide  an  estimate,  if  you  are  able,  of  the  number  of  

additional  registrations  you  anticipate  per  year  under  SORNA.  

Cities  (21)  

Counties  (14)  

Multiple  (6)  

     

183  

2,322  

68  

  

           

      The  City  of  West  Orange  (population  3,716)  noted,  “Our  commu n  ity  has  many  transi  ent        

employees,  we  have  numerous  chemical  and  industrial  plants  as  well  as  a  large  commercial  

base  (Super  Wal-­‐‑Mart,  etc.).    There  is  no  way  to  estimate  the  hundreds  of  possible  registrants  

out  of  this  SORNA  requirement.”  

  

Hays  County  explained  their  estimate  of  230  additional  registrations  by  stating  that  most  of   the  sex  offenders  will  have  to  register  two  times  per  year  instead  of  once.    This  adds  180   registrations;  come  back  adds  0-­‐‑15,  new  registrations  20-­‐‑25,  and  not  currently  registered  8-­‐‑10.    

They  further  noted  that  there  “will  be  a  huge  movement  of  SOR  when  this  takes  place  and  

keep  in  mind  none  of  this  includes  the  mandatory  compliance  checks.”  

  

The  Harris  County  group,  one  of  the  previously  mentioned  “multiple  jurisdictions”  which  

includes  the  City  of  El  Lago  and  the  City  of  Taylor  Lake  Village,  noted  difficulty  in  providing  

an  estimate  since  “the  sample  group  size  [is]  insufficient  to  predict  future  trends.”  

        

In  addition  to  the  previously  noted  comments,  Taylor  County  (population  127,683)  noted,  “So   much  attention  is  placed  on  Sex  Offender  compliance,  however,  little  to  none  is  placed  on   monitoring  and  or  home  visits.    I  believe  a  ‘Proactive’  measure  of  compliance  monitoring  would   be  so  much  more  effective.    There  needs  to  be  a  National  standard  for  offenders  to  follow  and   for  Law  Enforcement  too.”  
The  Childress  County  Sheriff,  who  responded  for  both  the  county  and  the  City  of  Childress,   noted  that  he  is  the  only  person  who  registers  sex  offenders  in  those  jurisdictions.    
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Calculations  

Estimating  the  Number  of  Additional  Verifications  
Estimating  additional  verifications  under  SORNA  is  a  bit  more  complicated.    Questions  7,  8  and   9  asked  for  an  estimate  of  how  many  currently  registered  offenders  would  fall  into  the  three   tiers  or  categories  under  SORNA.    Responses  accounted  for  2,395  of  the  3,510  sex  offenders   currently  registered  in  the  responding  jurisdictions  (see  question  1).    That  leaves  1,115  sex   offenders  not  counted  in  the  responses  to  these  three  questions.  

In  responding  to  question  3,  local  officials  noted  that  2,730  currently  registered  offenders   required  annual  verifications  in  2009.    Another  708  require  90  day  verifications  (four  per  year)   and  only  30  require  verifications  every  30  days  (12  per  year).    That  indicates  a  total  of  5,922   verifications  per  year  by  the  respondents  based  on  the  following  calculation.  

  2,730  X  1     =   2,730  verifications  per  year  

  708  X  4     =   2,832  verifications  per  year  

  30  X  12     =  

360  verifications  per  year  

  

     5,922  verifications  per  year  

  

Based  on  the  responses  to  questions  7,  8  and  9,  those  same  offenders  would  have  required  7,079  

registrations  for  Tier  1,  2  and  3  offenders  if  SORNA  had  been  in  effect  during  2009  per  the  

following  calculation.  

543  X  1     =  

543  verifications  per  year  

  556  X  2     =   1,112  verifications  per  year  

  1,266  X  4     =   5,064  verifications  per  year  

  30  X  12     =  

360  verifications  per  year  

  

     7,079  verifications  per  year  

  

The  above  calculation  assumes  that  requirements  would  not  be  reduced  under  SORNA.    For  

example,  offenders  that  had  to  have  verifications  every  30  days  would  continue  to  have  the  

same  requirement.    It  also  assumes  that  there  would  be  no  need  for  any  of  the  registered  sex  

offenders  to  register  in  additional  jurisdictions  (if  one  lived  in  one  jurisdiction  but  worked  or  

went  to  school  in  another,  for  example).    The  calculations  also  fail  to  account  for  the  1,115  

registered  sex  offenders  whom  the  respondents  were  unable  to  classify  in  any  of  the  three  tiers.  

These  two  calculations  indicate  1,157  additional  verifications  (7,079  –  5,922)  would  have  been   required  under  SORNA  for  those  offenders  the  respondents  were  able  to  classify,  a  19.5  percent   increase.    This  number  (1,157)  is  significantly  less  than  the  number  of  additional  verifications   the  respondents  estimated  would  be  required  under  SORNA  (2,573).    However,  the  calculated  
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number  (1,157)  does  not  include  any  additional  offenders.    Under  SORNA  certain  offences  will   require  offenders,  who  are  not  currently  required  to  register  as  a  sex  offender,  to  register  under   SORNA.      
Nor  do  the  calculations  address  the  additional  verifications  that  would  be  required  for  the  1,115   offenders  the  respondents  were  unable  to  classify.    It  is  difficult  to  estimate  how  many  more   verifications  would  be  required  for  this  group  given  that  we  don’t  know  how  many   verifications  were  required  in  2009.    Thus,  while  we  can  estimate  that  at  least  1,157  additional   verifications  would  be  required,  it  is  not  possible  to  estimate  the  total  number  of  additional   verifications  that  would  be  required  under  SORNA.    This  is  not,  however,  a  show  stopper  since   costs  can  be  estimated.  
Estimating  Additional  Salary  and  Benefits  
Manpower  assigned  to  handle  the  registration  and  verifications  of  sex  offenders  turned  out  to   be  lower  than  anticipated  for  FY  2009.    For  the  3,510  sex  offenders  registered  in  the  jurisdictions   of  the  75  respondents  (see  question  1),  there  were  reportedly  only  62.7225  full-­‐‑time  equivalents   assigned  (see  question  10)  earning  $1,651,722  in  salaries  and  benefits  (see  question  11).    That   indicates  that,  on  average,  one  FTE  is  required  for  each  55.96  sex  offenders  at  a  cost  to  local  law   enforcement  of  $26,333.81  per  year  in  salaries  and  benefits.    
A  simple  method  to  estimate  statewide  costs  to  local  governments  for  registering  sex  offenders   under  current  law  would  be  to  assume  that  the  number  of  sex  offenders  per  FTE  from  the   survey  respondents,  and  the  cost  in  salaries  and  benefits  for  that  FTE,  is  consistent  with  the  non-­‐‑ responding  local  governments.    Then,  the  total  number  of  sex  offenders  currently  registered  in   Texas  (40,219  as  of  September  22,  2010)  could  be  divided  by  55.96  to  determine  a  total  of  718.7   FTEs  needed  statewide.    Multiplying  that  number  by  the  average  cost  per  FTE  of  $26,333.81   results  in  estimated  statewide  salaries  and  benefits  of  $18,926,109  for  FY  2009.  
Estimating  Total  Additional  Costs  
Total  costs  of  $1,790,588  were  reported  by  all  respondents  for  registration  and  verification  of  sex   offenders  in  FY2009  (see  question  11).    In  that  period  the  respondents  performed  3,468   verifications  (see  question  3).    That  is  $516.32  per  verification  on  average.  
On  question  12,  the  respondents  estimated  SORNA  could  add  an  additional  2,573  verifications,   a  74.2%  increase.    At  $516.32  per  verification,  additional  costs  to  local  governments  that   responded  to  the  survey  would  be  $1,328,484  annually  for  the  respondents  (not  adjusting  for   inflation  and  other  cost  drivers).      
An  estimated  74.2%  increase  statewide  would  require  the  addition  of  533.3  FTEs  (718.7  FTEs  X   0.742).    Those  additional  FTEs  would  require  salaries  and  benefits  of  $14,043,821  in  FY  2009  
9  
  

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dollars  (not  adjusted  for  inflation).    Note  that  this  estimate  of  $14  million  per  year  is  for   additional  salaries  and  benefits  only.    Total  additional  costs  would  be  even  higher.      
Some  law  enforcement  agencies  would  be  able  to  achieve  economies  of  scale  which  would  tend   to  lower  this  rough  estimate.    However,  the  estimate  does  not  allow  for  other  factors  which   might  increase  the  cost  such  as  inflation.    Additional  record  keeping  and  other  requirements   mandated  by  the  as  yet  unwritten  bills  could  also  increase  the  amount  of  local  resources  needed   to  meet  the  standards  set  by  SORNA.    
Conclusion  
The  Texas  Municipal  League  and  the  Texas  Association  of  Counties  were  able  to  collect  sex   offender  registration  data  from  a  variety  of  local  cities  and  counties.    Based  on  the  75  responses,   TAC  and  TML  estimate  that  implementing  SORNA  would  cost  those  specific  cities  and  counties   an  additional  $1.3  million  per  year  in  nominal  dollars  (not  adjusted  for  inflation).    A  simple   extrapolation  based  on  the  number  of  sex  offenders  currently  registered,  indicates  that,   statewide,  cities  and  counties  would  be  hit  with  an  additional  $14  million  per  year  in  costs  for   registering  sex  offenders.    
Alternatively,  the  Austin  Police  Department  (APD)  prepared  a  cost  of  compliance  report  which   estimates  137  percent  cost  increase  for  staffing  due  to  SORNA.    Based  on  the  costs  collected  in   question  11  of  the  TAC/TML  survey,  a  137  percent  increase  would  cost  the  responding  counties   a  little  over  $2.6  million  in  additional  staffing  only.    An  estimate  of  the  additional  statewide   staffing  cost  can  be  made  by  multiplying  the  additional  cost  by  the  number  of  registered  sex   offenders  statewide  and  then  dividing  by  the  number  of  sex  offenders  registered  in  the   jurisdictions  that  responded  to  our  survey.    That  calculation  results  in  a  statewide  estimate  of   $25.9  million  for  additional  staffing  in  cities  and  counties.  
This  second  estimate  is  significantly  higher  than  the  first  estimate  of  $14  million  for  total   additional  costs.    The  difference  points  to  the  complexity  of  attempting  to  determine  future   costs  due  to  implementation  of  bills  which  have  yet  to  be  drafted  and  to  extrapolate  statewide   costs  from  a  very  small  sample  –  the  APD  study  is  based  on  only  one  city  after  all.    It  is  actually   quite  encouraging  that  the  two  estimates  are  not  further  apart  and  lends  confidence  in  the   accuracy  of  the  $14  million  statewide  estimate  despite  the  number  of  assumptions  used  in  its   calculation.  
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 2:12-cv-11194-RHC-DRG Doc # 14 Filed 04/24/12 Pg 1 of 38 Pg ID 276

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOES #1-4 AND MARY DOE,

Plaintiffs, v
RICK SNYDER, Governor of the State of Michigan, and COL. KRISTE ETUE, Director of the Michigan State Police, in their official capacities,

No. 2:12-cv-11194 HON. ROBERT H. CLELAND MAG. DAVID R. GRAND

Defendants.

Michael J. Steinberg (P43085) Kary Moss (P49759) American Civil Liberties Union of Michigan Attorneys for Plaintiffs 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6824

Miriam Aukerman (P63165) American Civil Liberties Union of Michigan Attorneys for Plaintiffs 89 Ionia NW Grand Rapids, MI 49503 (616) 301-0930

Margaret A. Nelson (P30342) Erik A. Grill (P64713) Attorney for Defendants Michigan Department of Attorney General Public Employment, Elections & Tort Div P.O. Box 30736 Lansing, MI 48909 (517) 373-6434

Paul D. Reingold (P27594) Michigan Clinical Law Program Attorneys for Plaintiffs 363 Legal Building 801 Monroe Street Ann Arbor, MI 48109 (734) 763-4319
William W. Swor (P21215) Attorney for Plaintiffs 645 Griswold Street, Ste 3060 Detroit, MI 48226 (313) 967-0200
/

AMENDED MOTION TO DISMISS

2:12-cv-11194-RHC-DRG Doc # 14 Filed 04/24/12 Pg 2 of 38 Pg ID 277 Defendants Governor Rick Snyder and Col. Kriste Ettue move this Court to
dismiss Plaintiffs’ Complaint pursuant to F.R.Civ. P 12(b) (1) and (6) for the reasons set forth in the accompanying Brief in support.
Defense counsel contacted Plaintiffs’ counsel on Thursday, April 19, 2012 to discuss concurrence in this motion as required by L.R. 7.1a. Concurrence was denied.
Defendants pray the Court grants this motion, dismisses this Complaint with prejudice and awards any additional relief it determines appropriate.
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DEFENDANTS’ AMENDED BRIEF IN SUPPORT OF MOTION TO DISMISS
CONCISE STATEMENT OF ISSUES PRESENTED
1. Michigan’s Sex Offender Registration Act ((‘SORA”) is a valid state regulation imposing registration and reporting requirements. It is not intended to punish and does not otherwise impose effects similar to punishment. Plaintiffs’ ex post facto challenges, thus, fail as a matter of law.
2. The 2011 SORA amendments to do not implicate fundamental rights or liberty interests protected by the federal due process clause. Plaintiffs’ Complaint fails to state a claim under the federal Due Process Clause.
3. Plaintiffs have failed to make allegations sufficient to state a claim that their First Amendment rights have been infringed by SORA's registration requirements.
4. Federal law provides for district courts to decline supplemental jurisdiction over claims that involve complex or novel issues of state law and where there are other compelling reasons not to hear the case. This Court should decline to exercise supplement jurisdiction over the Headlee Amendment claim in this Complaint or, in the alternative, dismiss it for failing to state a claim.

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CONTROLLING OR MOST APPROPRIATE AUTHORITY
Cases Adair I v. Michigan, 470 Mich 105; 680 NW2d 386 (2004) ........................................ 26 Akella v. Michigan Dept. of State Police, et. al, 67 F.Supp.2d 716 (E.D. Mich.
1999) ........................................................................................................................... 1 Artway v. Attorney General, 81 F.3d 1235 (3rd Cir. 1996) ............................................ 1 Barefoot v. Estelle, 463 U.S. 880 (1983) ........................................................................ 2 Bays v. City of Fairborn, 668 F3d 814 (6th Cir, 2012) ............................................... 24 Boy Scouts of America v. Dale, 530 U.S. 640; 120 S Ct 2446; 147 L Ed 2d 554
(2000) ........................................................................................................................ 24 Broadrick v. Oklahoma, 413 U.S. 601 (1973) ............................................................. 23 Calder v. Bull,3 U.S. 386, 1 L.Ed. 648 (1798)............................................................... 6 Carr v. United States, 130 S. Ct. 2229; 176 L. Ed. 2d 1152 (2010) .............................. 4 Columbia Natural Resources v. Tatum, 58 F.3d 1101 (6th Cir. 1995) ..................... 20 Connecticut v. Doe, 538 U.S. 1 (2003) ........................................................................... 1 Doe v. Alaska, 189 P3d, 999 (AK, 2008); .................................................................... 11 Doe v. Kelley, 961 F.Supp. 1105 (W.D. Mich. 1997)...................................................... 1 Doe v. Patacki, 120 F.23d f1263 (2nd Cir. 1997) ............................................................ 1 Doe XIV v. MSP, 490 F.3d 491 (2007) .......................................................................... 1 Durant v. Michigan, 456 Mich 175; 566 NW2d 272 (1997) ........................................ 26 Edison v. State of Tennessee, 510 F.3d 631 (6th Cir. 2007)......................................... 17 Flores v. Johnson, 210 F.3d 456 (5th Cir. 2000) ........................................................... 2 Fullmer v. MSP, 360 F.3d 579 (6th Cir. 2004) ............................................................. 1 Grayned v. City of Rockford, 408 U.S. 104 (1971) ...................................................... 20 Hamama v. INS, 78 F.3d 233 (6th Cir. 1996)............................................................. 18
ii

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In re Ayers, 239 Mich App 8 (1999) ............................................................................... 2 Kansas v. Crane, 534 U.S. 407 (2002) ........................................................................... 2 Kansas v. Hendricks, 521 U.S. 346 (1997) .................................................................... 6 Kenedy v. Mendoza-Martinez, 372 U.S. 144 (1963) ...................................................... 6 Kentucky v. Baker, 295 SW3d 437 (Ky, 2009)............................................................. 11 Kottmyer v. Mass, 436 F.3d 684 (6th Cir. 2000) .......................................................... 16 Lanni v. Engler, 994 F.Supp 849 (E.D. Mich. 1998).................................................... 1 Lyng v. Castillo, 477 U.S. 635 (1986) .......................................................................... 17 Maine v. Letalien, 985 A2d 4; 2009 ME 130 (Maine, 2009) ....................................... 11 McKune v. Lile, 536 U.S. 24 (2002) ............................................................................... 3 Owczarek v. Michigan, 276 Mich. App. 602 (2007) .................................................... 27 Palko v. Conn., 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937). ............................ 12 Pennhurst v. Halderman, 465 U.S. 89 (1984) ............................................................. 26 Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717 (1984) ................ 18 People v. Pennington, 240 Mich App 188 (2000)........................................................... 2 People v. Rahilly, 247 Mich. App. 108 (2001) ............................................................... 2 Phelps-Roper v. Strickland, 539 F3d 356 (6th Cir. 2008) .......................................... 23 Reno v. Flores, 507 U.S. 292, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993)....................... 13 Robinson v. Waterford, 883 F.2d 75 (6th Cir. 1989) ................................................... 21 Roe v. Officer of Adult Probation, 125 f.3d 47 (2nd Cir. 1997)..................................... 1 Roe v. Winthrop Farwell, et. al., 999 F. Supp. 174, 183 (D.C. MA 1998)..................... 6 Rogers v. Tennessee, 532 U.S. 451 (2001) ................................................................... 18 Ruhlman v. Brunsman, 664 .3d 615 (6th Cir 2011) ................................................... 18 Russell v. Gregoire, 1254 F.3d 1079 (9th Cir. 1997) ...................................................... 1 Saenz v. Roe, 526 U.S. 489 (1999) ............................................................................... 13
iii

2:12-cv-11194-RHC-DRG Doc # 14 Filed 04/24/12 Pg 6 of 38 Pg ID 281 Smith v. Doe, 538 U.S. 84; 123 S. Ct. 1140; 155 L. Ed. 2d 164 (2003)..................... 1, 3 U.S. v. Yacoubian, 24 F. 3d 1 (9th Cir. 1994) ............................................................. 18 United States v. Juvenile Male, 590 F.3d 924 (9th Cir. 2010) ................................... 11 United States v. American Library Association, 539 U.S. 194; 123 S Ct 2297;
156 L Ed 2d 221 (2003) ............................................................................................ 23 United States v. Williams, 892 F.2d 1044 (6th Cir. 1990).......................................... 21 Wallace v. Indiana, 905 NE2d 371 (Ind, 2009)........................................................... 11 Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 117 S. Ct. 2302, 138
L. Ed. 2d 772 (1997) ................................................................................................. 13 Williams v. Pollard, 44 F. 3d 433 (6th Cir. 1995); ....................................................... 16 Statutes M.C.L. 28.721 ................................................................................................................ vi M.C.L. 762.11 .......................................................................................................... vi, vii
iv

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STATEMENT OF FACTS This is an action for declaratory judgment and permanent injunction asserting both factual and as applied challenges to the constitutionality of recent amendments to Michigan’s Sex Offenders Registration Act (“SORA” or “the Act”), M.C.L. 28.721, et. seq. Specifically, Plaintiffs challenge the application to them of certain registration requirements and changes to the period of registration based implemented by 2011 P.A. 17: • as violating federal constitution’s prohibition against ex post facto laws without an individualized determination of dangerousness; • and, as violating fundamental rights to travel, to engage in the common occupations of life, to direct the education and upbringing of their children, so unconstitutionally vague and to engage in free speech. Plaintiffs also assert a violation of Mich. Const. 1963, art. 9, § 29, commonly referred to as the “Headlee Amendment.” Plaintiffs claim the 2011 amendments increase the required activities of local governments without any appropriation to cover related increased costs. Each of the Plaintiffs was required to register as an offender prior to the challenged 2011 amendments. (Complaint ¶¶ 25, 36, 51, 62, 74) Does 2 and 3 were charged with criminal sexual conduct offenses but assigned to youthful trainee status pursuant to M.C.L. 762.11 prior to October 1, 2004. Although successfully discharged with no conviction being entered, they were required to register under both the Holmes Youthful Trainee Act (HYTA), M.C.L. 762.11, et. seq., SORA, pre and post the 2011 amendment, M.C.L. 28.724. (Complaint ¶¶ 36, 51)Does 1 and 4
v

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and May Doe were also convicted of offenses requiring registration prior to the 2011 amendments. (Complaint ¶¶ 25, 62, 74)
Michigan’s SORA was first adopted in response to the requirements imposed by federal law. 42 U.S.C. §14071. The SORA initially required the registration of individuals convicted of certain identified sex offenses and created a “law enforcement registry” available to only law enforcement agencies. 1994 P.A. 295, §8. In 1996, “Megan’s Law” amended the federal statute to require community notification. 42 U.S.C. § 14071. Michigan’s SORA was amended to comply with these new federal requirements. 1996 P.A. 494, § 1, M.C.L. 28.728(2); M.C.L. 28.730(2) and (3).
Subsequent amendments have been made to the Act including: • verification requirements determined by the crime of conviction, M.C.L.
28.724a; M.C.L. 28.725; • to incorporate the requirements of the Campus Sex Crimes act, 42 U.S.C.
§14071; • to provide authority for offenders who were provided youthful trainee status
under M.C.L. 762.11, et. seq. prior to October 1, 2044 to petition the original sentencing court to reduce their registration period from 25 to 10 years; M.C.L. 28.725a; M.C.L. 28.728c(15); M.C.L. 28.728d. At the same time, HYTA was amended to remove from eligibility anyone charged with criminal sexual offense or an offense for which registration is required. 2004 P.A. 239; M.C.L. 762.11.
vi

2:12-cv-11194-RHC-DRG Doc # 14 Filed 04/24/12 Pg 9 of 38 Pg ID 284 • to create a Student Safety Zone prohibiting an offender from working,
residing or loitering with the zone, with certain exceptions, the Student Safety Zone Act was adopted and incorporated in to SORA, M.C.L. 28.733736; The challenged 2011 amendments and these 2004 and 2007 changes form the basis for Plaintiffs’ challenge here. Defendants' motion relies on the facts as alleged in this Complaint.
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INTRODUCTION Each iteration of sex offender registration statutes has brought federal constitutional challenges under the same or similar theories raised here – ex post facto; substantive and procedural due process; first amendment. All have failed and the registration, public notification provision and retroactive application to offenders convicted before the adoption of these laws has been generally affirmed. Doe v. Patacki, 120 F.3d 263 (2nd Cir. 1997); Russell v. Gregoire, 1254 F.3d 1079 (9th Cir. 1997); Artway v. Attorney General, 81 F.3d 1235 (3rd Cir. 1996); Roe v. Officer of Adult Probation, 125 F.3d 47 (2nd Cir. 1997); Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999); Connecticut v. Doe, 538 U.S. 1 (2003); Smith v. Doe, 538 U.S. 84 (2003). Michigan’s federal district courts and the Sixth Circuit have also addressed these claims in the context of Michigan’s SORA prior to the 2011 amendment, affirming these same provisions. See: Doe v. Kelley, 961 F.Supp. 1105 (W.D. Mich. 1997) (ex post facto, due process claims); Lanni v. Engler, 994 F.Supp 849 (E.D. Mich. 1998) (ex post facto, due process claims); Akella v. Michigan Dept. of State Police, 67 F.Supp.2d 716 (E.D. Mich. 1999) (ex post facto, due process claims); Fullmer v. MSP, 360 F.3d 579 (6th Cir. 2004) (substantive and procedural due process, equal protection); Doe XIV v. MSP, 490 F.3d 491 (2007) (a case specific to HYTA classifications – substantive and procedural due process; equal protection claims)
1

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Michigan’s appellate court has also upheld SORA’s registration and public notification provisions against ex post fact and due process challenges. See: People v. Pennington, 240 Mich App 188, 193-197 (2000); In re Ayers, 239 Mich App 8, 1419 (1999); People v. Rahilly, 247 Mich. App. 108, 114-116 (2001) (finding that registration requirements applied to youthful trainees did not violate due process)
In designing its registry, Michigan opted for on an offense based registration system rather than risk assessment community notification. This choice is consistent with the federal statute and mirrors the approach taken by Congress in enacting the law. Except in its treatment of sexually violent predators, the federal act, 42 U.S.C. § 14071, also focused on the nature of the offense.
Practical considerations also supported Michigan’s choice. Predictions about future dangerousness, expert or otherwise, following individualized hearings, are problematic. “The scientific community virtually unanimously agrees that psychiatric testimony on future dangerousness is, to put it bluntly, unreliable and unscientific.” Flores v. Johnson, 210 F.3d 456, 463 (5th Cir. 2000) (Garza, J., concurring) (rejecting psychiatrist’s testimony regarding “future dangerousness” pursuant to requirements set by the court for expert testimony), cert. denied, 531 U.S. 987 (2000). The U. S. Supreme Court, itself has noted the difficulty inherent in predicting “future dangerousness.” Barefoot v. Estelle, 463 U.S. 880, 900 (1983); Kansas v. Crane, 534 U.S. 407 (2002). The U.S. Supreme Court has also affirmatively recognized that sex crimes and sex offenders pose a serious threat citing statistics indicating that a majority of reported forcible sex offenses were committed against person under 18 years of age; nearly 4 in 10 imprisoned
2

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offenders indicate their victims were 12 or younger; and, when convicted sex offenders reenter society, they are more likely than any other type of offender to be re-arrested for a new rape or sex assault. McKune v. Lile, 536 U.S. 24, 32, 33 (2002). Given these considerations, Michigan’s choice to continue an “offense based” classification of sex offenders for purposes of ordering its registry is both rational and directed to the very purposes of the law – law enforcement access; public safety; and community notification.
ARGUMENT I. Michigan’s SORA is a valid state regulation imposing registration
and reporting requirements. It is not intended to punish and does not otherwise impose effects similar to punishment. Plaintiffs’ ex post facto challenges, thus, fail as a matter of law. Plaintiffs contend that the 2011 amendments to Michigan’s Sex Offenders Registration Act are ex post facto punishments because they made more burdensome the punishments imposed for offenses committed prior to the enactment of the amendments. (Complaint, ¶294). However, federal courts— including the United States Supreme Court—have already rejected the argument that sex offender registration constitutes an ex post facto punishment. In Smith v. Doe, the Supreme Court evaluated sex offender registration under the ex post facto prescription. Smith v. Doe, 538 U.S. 84; 123 S. Ct. 1140; 155 L. Ed. 2d 164 (2003). The Supreme Court observed that the public dissemination of truthful information is not considered a punishment. Smith, 538 U.S. at 98-99. In fact, the Supreme Court noted, “although the public availability of the information may have a lasting and painful impact on the convicted sex offender, these
3

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consequences flow not from the Act's registration and dissemination provisions, but from the conviction, already a matter of public record.” Smith, 538 U.S. at 101.
Plaintiffs allege that they have not been individually determined to pose a risk to the community. (Complaint, ¶252-271). This appears to be a fundamental grounding of all their federal claims including this ex post facto challenge. Yet, these allegations are irrelevant to this analysis because Michigan does not classify based on risk but rather based on offense, a categorical judgment affirmed by the U.S. Supreme Court. A state's determination to legislate with respect to convicted sex offenders as a class, “rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause.” Smith, 538 U.S. at 103-104. Consequently, the fact Plaintiffs are subject to registration based on their crimes rather than on a personal determination of risk to the community does not render their registration unconstitutional. Such a requirement “is non-punitive, and its retroactive application does not violate the Ex Post Facto Clause.” Smith, 538 U.S. at 105-106. Smith continues to have application today. Carr v. United States, 130 S. Ct. 2229, 2239, n 7; 176 L. Ed. 2d 1152 (2010).1
It should be noted, though, Plaintiffs were already registered offenders at the time of the 2011 amendments. Plaintiffs’ ex post face challenge is based on the following: 1 While the Court did not reach the ex post facto challenge in that case because it found that SORNA did not apply to pre-enactment travel, it is worth observing for purposes of considering Plaintiffs’ “Due Process—Travel” claim that the Supreme Court expressed no concern over SORNA’s travel restrictions for post-enactment registered sex offenders. Carr, 130 S Ct at 2239-40.
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• the creation of Tiers I, II, and III retroactive assignment to Tier III; and the resulting extension of their reporting period from 25 years to life (Complaint ¶¶ 104, 105, 110);
• Classifications based on the offense, not actual risk of re-offending or danger to the public (Complaint ¶¶ 106, 107);
• Application of Tier III requirements to offenders convicted of offenses that do not have a sexual component or who were subject to diversion under HYTA and to individuals adjudicated as juveniles. (Complaint ¶¶ 113, 114).
These claims are not different than those previously considered and rejected by the numerous federal courts previously considering ex post facto challenges to registration and reporting requirements. Now, however, those offenders convicted of the most serious offenses are assigned to Tier III. M.C.L. 28.722(w). Previously these offenders were required to report for 25 years. With the 2011 amendment, Tier III offenders must now report for life. M.C.L. 28.725(12).
The information each offender must provide is identical, whatever the assigned Tier. M.C.L. 28.727(1)(a)(r). With a few exceptions, this is the same information previously required of the registrants. The reporting requirements are generally the same as well. A Tier III offender must report and verify the registry information quarterly. M.C.L. 28.725 (9)-(12). Like before, offenders are also required to update certain registration information within a specified number of days from any change. M.C.L. 28.725.
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Plaintiffs’ ex post facto challenge, thus, is principally based on the change in the required reporting period applied to those offenders assigned to Tier III. The Ex Post Facto Clause of the federal constitution, art. 1, § 10, prohibits a state legislative enactment that 1) makes a prior action, which was legal when done, criminal, and punishes such action; 2) aggravates a crime, or makes it greater than it was, when committed; 3) changes the punishment by inflicting a greater punishment, than the law annexed to the crime, when committed; 4) alters the legal rules of evidence, and requires less, or different testimony than the law required at the time of the commission of the offense in order to convict the offender. Roe v. Winthrop Farwell, et. al., 999 F. Supp. 174, 183 (D.C. MA 1998) citing, Calder v. Bull, 3 U.S. 386, 390, 1 L.Ed. 648 (1798). The Ex Post Facto Clause applies only to criminal statutes. Kansas v. Hendricks, 521 U.S. at 361. In deciding whether Plaintiffs have plead a constitutional claim under this theory, the Court applies the intent-effects test discussed in Kansas v. Hendricks, 521 U.S. 346, 361 (1997) utilizing the factors identified in Kenedy v. Mendoza-Martinez, 372 U.S. 144, 168, 169 (1963).
As noted, both federal and state courts have addressed the purpose and intent of Michigan’s SORA finding it to be regulatory and not punitive—including the registration, quarterly verification and reporting requirements as applied to registered offenders. This leaves only the question of whether extending the verification and reporting requirements violates the prohibition against ex post facto laws under the intents-effects test.
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The first step of this analysis is to determine whether the legislative purpose is civil or criminal. The second step is to determine whether the effects of the law, apart from the legislative purpose, constitute punishment.
A. Legislative Purpose Whether a legislative scheme is civil or criminal is first a question of statutory construction. Hendricks, Id. at 361; Smith, 538 U.S. at 92. This requires the court to consider the statute’s text and its structure to determine the legislative objective. Here, the provisions at issue, M.C.L. 28.722(w), M.C.L. 28.725 and 725((12), and M.C.L. 28.727 (1)(a)-(r) were amended to create a tiered registration system and impose different reporting and verification requirements based on the assigned Tier. The federal courts have previously recognized SORAs registration and verification requirements to be remedial or regulatory in nature. Kelley, 961 F. Supp. At 1109-12; Lanni, 994 F. Supp. At 855; Akella, 67 F. Supp.2d at 733. And SORA's purpose to be public safety and community notification. Id.; Lanni, Id, at 855. See also, Russell v. Gregoire, 124 F.3d at 1093. The registration, quarterly verification and reporting requirements, even when imposed for life, are rationally related to this identified purpose. The fact Michigan’s SORA was amended to bring it into compliance with federal requirements does not alter this purpose. Rather it serves to further it. These requirements assure current, up-to-date information to both law enforcement and the public. Further, requiring individual offenders to go to a police agency and complete the verification form, notifies the offenders of their continued obligations under SORA; assists the Michigan State Police in maintaining accurate
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identification; and assists law enforcement by providing a central information source as an investigatory tool. Yet, as the U.S. Supreme Court noted in Smith, the requirement of reporting in person to a police station once per quarter is less harsh than “occupation debarment” which the federals courts conclude is not punitive. Smith, 538 U.S. at 100.
Other factors to be considered by the Court in evaluating legislative intent include the manner of the statute’s codification and the enforcement procedures it establishes. Hendricks, Id. at 361; Smith, Id. at 94. SORA is codified in Chapter 28 of the State’s Civil code related to the administration and regulatory authority of the Michigan State Police. None of the provisions within this Chapter can be considered punitive. Codification of SORA in this Chapter clearly indicates a nonpunitive legislative intent. SORAs requirements to notify offenders of the registration, verification and reporting requirements also denote a non-punitive purpose. M.C.L. 28.726. The fact this notice may be part of the plea colloquy or invoke the criminal process in aid of the statutory scheme does not render it punitive. Smith, Id. at 95.
These requirements are nothing more than a civil consequence for the criminal conduct for which the individual was convicted as defined under the Act. The fact certain Plaintiffs must now continue to report for life as opposed to 25 years, is nothing more than a continuing remedy reflecting the seriousness of their offense, and assuring accurate, efficient and cost-effective information updates on those who have been convicted of the most severe criminal sexual conduct.
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B. Effects In cases analyzing these registration statutes under the ex post facto intentseffects test, the courts have routinely evaluated the five (5) most relevant MendozaMartinez factors. 1. Whether the regulations scheme is regarded by history and tradition as punishment: Sex offender registration and notification statutes are of recent origin – generally beginning in 1994. They have not typically been identified as punishment or associated with forms of punishment recognized through history. They are certainly less onerous than reporting to a probation or parole agent to establish compliance with the terms and conditions of the sentence or release. Here offenders personally appear to complete and sign a form, or update specific information, no questions are asked, no restrictions on conduct are imposed, and no continuing supervision is involved as with probation or parole. The challenged requirements are, thus, not similar to any historically recognized concept of punishment. 2. Whether the regulatory scheme imposes an affirmative or restraint: This factor evaluates how the effects of the Act are felt by those subject to it. If the disability is minor and indirect, its effects are too unlikely to be punitive. Smith, 538 U.S. at 99, 100. Here, the Act does not impose any physical restraint resembling imprisonment. As the Smith Court noted, these reporting and verification requirements are less harsh than “occupation debarment which we have held to be non-punitive.” Id. at 100. Contrary to Plaintiffs’ allegations, the Act does not restrain activities sex offenders may
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pursue; they are free to choose jobs, change employment, move their residence, travel in and out of the state and country, move out of the state. The quarterly verification and reporting requirements involve a mere appearance at a police post to complete and sign a form. This takes no more time than it does to make a deposit or withdrawal from the bank. There is no interview, no interrogation, no discussion other than that needed to obtain and return the form. Thus, any disability is minor and indirect and does not constitute punishment. 3. Whether the regulatory scheme promotes the traditional aims of punishment or has a rational connection to a non-punitive purpose: reordering the register to comply with federal requirements and create a consistent scheme in relation to other states is also rationally related to the purpose of the Act. Michigan’s statute tiers its register based on the severity of the offense—the more severe the offense, the longer the required registration period. States are not barred from drawing such classifications based on the offense alone. Connecticut v. Doe, 537 U.S. at 8; Smith, 538 U.S. at 103, 104. It represents a non-punitive, rational choice that directly relates to the purpose of the Act – notification and public safety. 4. In Smith, the Court concluded that Alaska's "Act's rational connection to a nunpunitive purpose is a 'most significant' factor in our determination that the statute's effects are not punitive." Smith, 538 U.S. at 102. Similar consideration should be given here in evaluating Plaintiffs’ challenge. The fact the reporting periods are directly related to the offense of conviction
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rather than a questionable risk assessment does not establish a punitive purpose. The Ex Post Facto Clause does not preclude a state from making a reasonable categorical judgment that conviction of specified crimes should entail particular regulatory consequences. Id. at 103-04. Thus, Michigan’s determination to legislate with respect to convicted sex offenders as a class, and to now tier its registry based on the severity of the offense of conviction, rather than an individual determination of dangerousness, which is itself an reliable assessment and predictor, has a rational connection to the nonpunitive purpose of the Act. Id. 5. SORA’s reporting and verification requirements are not excessive with respect to its stated purpose. The requirement that Tier III offenders report for life is not excessive especially given the nature of the crime involved, the related recidivism rates, the purpose of the Act, the coextensive federal requirement and the non-punitive nature of the Act. Id. at 104. In sum, Michigan's SORA does not violate the Ex Post Facto Clause. The cases by Plaintiffs in their Complaint do not support a different analysis. Each is easily distinguished and inapplicable to this federal constitutional challenge: United States v. Juvenile Male, 590 F.3d 924 (9th Cir. 2010) (the Court's holding that the SORNA’s application to juveniles who were adjudicated delinquent under the Federal Juvenile Delinquency Act prior to its enactment had a punitive effect was vacated by the mootness. Id. at 2864); State v. Williams, 952 N.E.2d 1108, 11011; 129 Ohio St. 3d 344 (2011); Wallace v. Indiana, 905 NE2d 371, 373, 377 (Ind, 2009); Maine v. Letalien, 985 A2d 4; 2009 ME 130 (Maine, 2009); Doe v. Alaska, 189
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P3d, 999, 1006 (AK, 2008); Kentucky v. Baker, 295 SW3d 437, 440, 443 (Ky, 2009) (construing Kentucky’s school safety zone provisions that created broader “exclusion zone” including schools, playgrounds and day cares the Court found the statute was not intended to be punitive, but the effect of including more locations in the “exclusion zones” acted as a kind of “banishment” rendering the statute punitive in effect); (each Court's analyzed the ex post facto claim under their state's constitutional provision, specifically noting the difference to the federal clause);
In summary, Plaintiff’s ex post facto challenge fails to state a claim as a matter and should therefore be dismissed.
II. The 2011 SORA amendments do not implicate fundamental rights or liberty interests protected by the federal due process clause. Plaintiffs’ Complaint fails to state a claim under the federal Due Process Clause. Plaintiffs assert both substantive and due process challenges to the 201l
SORA Amendments. Each will be addressed separately. A. Substantive Process claims, Counts II, III, IV. Plaintiffs allege the 2011 SORA amendments interfere with their
fundamental rights to travel, engage in common occupations of life; and to direct the education and upbringing of their children. Yet, these claims fail based on the facts extant and the applicable law.
The substantive component of the Due Process Clause protects "fundamental rights" that are so "implicit in the concept of ordered liberty" that "neither liberty nor justice would exist if they were sacrificed." Palko v. Conn., 302 U.S. 319, 325, 58 S. Ct. 149, 82 L. Ed. 288 (1937). Such rights include "the rights to marry, to have
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children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion." Washington v. Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997). The Supreme Court has cautioned, however, that it has "always been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended." Id. When reviewing a substantive due process claim, we must first craft a "careful description of the asserted right," Reno v. Flores, 507 U.S. 292, 302, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993), and then determine whether that right is "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty," such that it can be considered a "fundamental right." Glucksberg, 521 U.S. at 721. Legislation that infringes a fundamental right is reviewed under a strict-scrutiny test. Such a statute is constitutional, though, when it is narrowly tailored to serve a compelling state interest. Flores, Id. at 302.
a. Travel (Count II) The Supreme Court has described the contours of the right to travel as including three different components. It protects the right of a citizen of one State to enter and to leave another State; the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State. Johnson v. Cincinnati, 310 F.3d 484, citing Saenz v. Roe, 526 U.S. 489, 493, 508 (1999). The Sixth Circuit holds that the Constitution also "protects a right to travel locally through public spaces and roadways.”
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Johnson, Id. at 498. Thus, for purposes of this motion only, Defendants concede a fundamental right to both interstate and intrastate travel under the described parameters exists.
Is this right to travel infringed by the 2011 amendments to SORA? The answer must be “No.” SORA requires only that a registrant must report: a change of residence that is to last more than 7 days, M.C.L. 28.725 (1)(e); a change of residence or domicile to another state, M.C.L. 28.725(6); a change of residence or domicile to another country or travel to another country for more than 7 days, M.C.L. 28.725 (7). These requirements do not restrict either inter or intrastate travel within the described parameters. Rather they are reasonably related to the need to keep the registry current. Changes of residence or domicile or extended absences from the state are significant information. The required updates keep the registry current and law enforcement and the public informed of a registrant's movement.
Plaintiffs also allege the verification and reporting requirements restrict their ability to travel in violation of this protected right. Again, this is untrue in the context of the right as defined by the Supreme Court and the Sixth Circuit. Plaintiffs know the range of dates on which they must report each quarter as they are specified in the statute. M.C.L. 28.725a(c). There is no restriction on entering one State from another; there is no restriction on the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and there is no restriction on relocating permanently to another State. A similar analysis applies to intrastate travel. No restrictions on where and when
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the registrant may travel was created by SORA. These requirements may require more careful planning, but do not impede or impose on travel.
Even if the Court construes the verification and reporting requirements as infringing this “right,” these requirements are narrowly tailored to meet a compelling state interest. The verification requirements for Tier III registrants is once a quarter, with the dates identified in the statute. This allows for planning and notification if the registrant is going to be absent during that period. The reporting requirements only apply when certain registration information changes, i.e. residence or domicile for more than 7 days, or permanently; a vehicle registration; an email address; an employer address. Other reporting requirements relate directly to travel – traveling for more than 7 days inside or outside the country. These are not restrictive requirements in any sense. They are narrowly tailored to meet the purpose of the statute and the State's compelling interest– public safety.
b. Work (Count III) The Sixth Circuit has long recognized that the “”freedom to choose and pursue a career” and “to engage in any of the common occupations of life,” qualifies as a liberty interest which may not be arbitrarily denied by the State. Parate v. Isibor, 868 F.2d 821, 831 (6th Cir. 1989) citing, Meyer v. Nebraska, 262 U.S. 390, 399 (1923). A violation of this protected liberty interest occurs when 1) official acts that are unreasonable or arbitrary cause a deprivation, or 2) involve official acts that “may not take place no matter what procedural protections accompany them.” Parate, Id. Additionally, the Court must consider the nature and seriousness of the
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alleged governmental interference; and the strength of the justification given. Id. This is, in essence, a procedural due process claim.
Here, Plaintiffs do not and cannot make out such a claim. The facts establish that Plaintiffs' difficulty in obtaining work or keeping it is directly related to their criminal conduct, not their registration. The statute does not impose any affirmative restraint on the type of employment that can be sought; when the registrant may work; or where, other than the prohibition related to the student safety zone. M.C.L. 28.734(1)(a). Plaintiffs' do not identify any unreasonable or arbitrary acts causing the alleged deprivation, which is effectively an inability to find or keep employment, not to choose and pursue a career. Further, the State has a compelling interest being served by these registration requirements which strongly justifies the challenged requirements – public notification and public safety.
Significantly, Plaintiffs claim is premised on the reluctance of employers to hire sex offenders – not on any government action prohibiting or preventing that employment. On balance, the State’s action does not infringe this constitutionally protected interest and is otherwise justified by the compelling interest and purposes served by this registry and community notification.
c. Children (Count III) While parents have a constitutionally protected liberty interest in the education and upbringing of one’s children, this right is not absolute or unqualified. Williams v. Pollard, 44 F. 3d 433, 434-435 (6th Cir. 1995); Kottmyer v. Mass, 436 F.3d 684, 690 (6th Cir. 2000); Edison v. State of Tennessee, 510 F.3d 631, 635, 636
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(6th Cir. 2007). It is limited by an equally compelling governmental interest in the protection of children. Kottmeyer, Id. at 689, 690. The state’s action, thus, must directly and substantially interfere with this right, and must be unrelated to a compelling government interest. Lyng v. Castillo, 477 U.S. 635, 638 (1986); Kottmeyer, Id.
Here the facts do not establish any interference with Plaintiffs’ interest in the education and upbringing of their children. SORA does not directly infringe any significant aspect of the parenting relationship. Any restrictions are those related to their criminal conduct, not their registration. Any limitations on the registered offender’s participation in school activities are minimal and indirect. A registered offender may participate in decisions about what school his or her children will attend, additional school activities; tutoring; homework, etc. A registered offender may attend a parent-teacher conference, but not activities whose primary purpose is to watch and observe children – such as sporting events or plays. M.C.L. 28.733(b).
Any State “interference” with this fundamental right indirectly, passes strict scrutiny because it is narrowly drawn and rationally related to a compelling government interest – public safety, the safety of children. This claim therefore fails as a matter of law and should be dismissed.
d. Retroactivity (Count VI) The Due Process Clause provides a means by which to challenge the application of a judicial decision on ex post facto grounds based on “core due process concepts of notice, foreseeability, and, in particular, the right to fair warning as those concepts bear on the constitutionality of attaching criminal penalties to what
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previously had been innocent conduct.” Ruhlman v. Brunsman, 664 .3d 615, 620 (6th Cir 2011), citing Rogers v. Tennessee, 532 U.S. 451, 459 (2001). “When addressing ex post facto-type due process concerns,” questions of notice, foreseeability, and fair warning are paramount. U.S. v. Barton, 455 F.3d 649, 654 (6th Cir. 2006). Thus, a due process retroactivity claim involves a judicial interpretation of criminal law and must consider whether that decision is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” Ruhlman, Id. at 620, citing Rogers, 532 U.S. at 462.
This concept has also been discussed in the context of retroactive legislation. Hamama v. INS, 78 F.3d 233, 236 (6th Cir. 1996); U.S. v. Yacoubian, 24 F. 3d 1, 7, 8 (9th Cir. 1994) (each involving application of 8 U.S.C. §1251(a)(2)(C) to an alien convicted of a firearms offense before the passage of the statute.) See also: Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 729, 730 (1984) involving retroactive legislation.
Here, Plaintiffs retroactivity claims clearly fail: • First, neither the criminal procedure, crime elements nor sentencing
provisions related to the underlying criminals offenses have changed or were changed as a result of the 2011 SORA amendments; • Second, SORA is not a criminal statute, nor a judicial interpretation being given retroactive application. Rather, each of the Plaintiffs were subject to SORA at the time of the 2011 amendments. The changes to the registration period, and required registration information are prospective.
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• Third, in relation to John Does 2 and 3 and their youthful trainee status, they were on notice at the time of their application, acceptance and ultimate resolution of the criminal charges that they would have to register. When the SORA was first adopted in 1994, the legislature also amended the HYTA to provide that individuals assigned to youthful trainee status were required to register as sex offenders, in effect creating an exception to HYTA. 1994 P.A. 286; Doe v. MSP, 490 F.3d 491 at 495. In 2004, HYTA was changed again to remove all eligibility for sex offenses. Doe, Id at 496. Consequently, the Sixth Circuit concluded, this interaction between SORA and HYTA abrogates any agreement for youthful trainees charged with sex offenses prior to October 1, 2004. Their registration and its attendant requirements do not rise to the level of a substantive due process violation. Id. at 501. See also People v. Rahilly, 247 Mich. App. at 114-116.
• Fourth, the State has a rational basis for this requirement. These changes in the registration period and registration requirements, are rationally related the purpose of the statute – public safety, conforming the State’s registry to federal law and that of other State’s creating a more uniform system for law enforcement, and public notification.
• Fifth, contrary to Plaintiffs’ allegations, they do have a remedy under state law – review by their respective sentencing courts on an as-applied basis. They could advance state court challenges on an as-applied just as other convicted sex offenders in Michigan have done. See People v. DiPiazza, 286 Mich. App. 137 (2009). 19

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e. Vagueness, Impossibility and Strict Liability. (Count VII) The due process clause of the Constitution provides the foundation for the void for vagueness doctrine. Columbia Natural Resources v. Tatum, 58 F.3d 1101, 1104, 1105 (6th Cir. 1995). This vagueness doctrine has two primary goals. The first is to ensure fair notice to the citizenry; the second is to provide standards for enforcement by the police, judges, and juries. Id. at 1104-1105.
A. A person of ordinary intelligence would know what reporting obligations are required by the statute.
The standard for vagueness in the constitutional context is whether "a person of ordinary intelligence could identify the applicable standard for inclusion and exclusion." Grayned v. City of Rockford, 408 U.S. 104, 108 (1971). The language of the statute at issue here is fairly specific when viewed in context and applying the ordinary understanding and meaning of the statute's terms. Plaintiffs’ parsing of the words and questioning the most obscure reading of each challenged provision is beyond reasonable. (Complaint ¶¶ 216-228) A person of ordinary intelligence would understand these requirements. These registration requirements have been in the statute, for the most part, since its inception. Based on the facts alleged, Plaintiffs have understood these requirements and have been in compliance for the period of their registration. Indeed, they have apparently complied with all these requirements since July 1, 2011, the effective of the 2011 amendments. Plaintiffs have reported quarterly since the dates of their initial registrations and at least four (4) times since adoption of the 2011 amendments. They do not indicate being notified of any violations or charged with any failure to report information.
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Apparently they are individuals of at least ordinary intelligence and understand these requirements and their obligations to meet them.
B. The statute provides the constitutionally requisite minimal law enforcement guidelines.
This second concern—minimal enforcement standards, is related to the first. While the first involves notice to those charged with obeying the law, the second relates to those who must enforce the law. The standards of enforcement must be precise enough to avoid "involving so many factors of varying effect that neither the person to decide in advance nor the jury after the fact can safely and certainly judge the result." Columbia, 58 F.3d at 1105. A statute will be held void for vagueness only when it "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc basis. . . ." United States v. Williams, 892 F.2d 1044 (6th Cir. 1990) (citing Grayned v. City of Rockford, 408 U.S. at 109). The statute meets these controlling requirements:
• The statute contains a controlling standard – failure to meet the required dates for verification determined by the assigned Tier which is in turn determined by the offense of conviction; or a related failure to report new or changed information.
• Subsection (b) of the statute contains an intent requirement. The Supreme Court repeatedly has recognized that a scienter requirement may save a statute that might otherwise be unconstitutionally vague. Robinson v. Waterford, 883 F.2d 75 (6th Cir. 1989) (citing Boyce Motor Lines v. United States, 342 U.S. 342 (1951); Screws v. United States, 325 U.S. 91, 101-103
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(1945). The effect of the “scienter standard on the vagueness . . . of a statute” must be examined on a case-by-case basis. Id. at 78. The statute contains just such a scienter requirement in that a crime is committed only when an “individual required to be registered” willfully violates the act. M.C.L. 28.729 (1). Not only does this serve to invalidate Plaintiffs’ vagueness challenge, it also squarely address the “impossibility” and “strict liability” claims. It is apparent the challenged provisions are not impossible of compliance because Plaintiffs have in fact complied with them. Further, there is not strict criminal liability because the failure to comply with the statute’s requirements must be “willfull.” This eliminates, at a minimum, accidental or excusable failure. Plaintiffs’ due process claims fail in all respects and should be dismissed.
III. Plaintiffs have failed to make allegations sufficient to state a claim that their First Amendment rights have been infringed by SORA's registration requirements. Plaintiffs next allege that SORA abridges their First Amendment right to
freedom of speech because the requirement that they reveal their on-line account information to law enforcement interferes with their access to the Internet, including Facebook and Netflix. This claim is specious at best. First, SORA requires only that Plaintiffs provide all electronic mail and instant message addresses, login names or other identifiers used for any electronic mail address or instant messaging system. M.C.L. 28.727(i). It does not require any passwords,
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codes or other access information. Further, Plaintiffs fail to identify a recognized First Amendment right infringed upon by this.
SORA does not restrict internet or social media access. It does not regulate the time, place or manner of any internet content or speech. It has no chilling effect. It does serve an important government interest. Broadrick v. Oklahoma, 413 U.S. 601, 615-16 (1973); Phelps-Roper v. Strickland, 539 F3d 356, 361 (6th Cir. 2008).
There are no cases in the Sixth Circuit recognizing a First Amendment right to Internet access—much less anonymous Internet access or speech—and Plaintiffs offer none. Indeed, the Supreme Court’s most apt pronouncement on the subject tends to suggest that such a right does not exist. See United States v. American Library Association, 539 U.S. 194, 206-207; 123 S Ct 2297; 156 L Ed 2d 221 (2003).
Nonetheless, even if there were a First Amendment right to unfettered Internet access and unrestrained anonymous Internet speech, Plaintiffs have failed to make allegations suggesting that any such rights are abridged by SORA. Plaintiffs allege that their speech rights are infringed because they are unclear whether they have to register with law enforcement to set up on-line accounts to pay taxes, sign up for Netflix, or purchase and review products on Amazon. (Complaint ¶203). Plaintiffs also claim their Facebook accounts have been deleted (Complaint, ¶206). Further, Plaintiffs acknowledge that it is Facebook’s own policy that prohibits sex offenders from using that service, not SORA. The fact that Facebook—a corporation and not a governmental entity—has chosen to exclude them from its on-line community does not implicate any First Amendment right.
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Rather, Facebook has a First Amendment right of association to exclude them from its membership. See Boy Scouts of America v. Dale, 530 U.S. 640; 120 S Ct 2446; 147 L Ed 2d 554 (2000). First Amendment protections are triggered by government actions and private entities acting on their own cannot deprive a person of their First Amendment rights. Bays v. City of Fairborn, 668 F3d 814, 819 (6th Cir, 2012).
Plaintiffs do not allege that this registration requirement is in any way tied to specific viewpoints or content, and is instead applied to them generally on the basis of their being convicted sex offenders. SORA does not bar them from using the Internet as a channel for communication, and only requires that convicted sex offenders reveal their e-mail addresses, chat names, or other on-line identities. This limitation is narrowly tailored to the significant governmental interest in preventing sex offenders from using the Internet to conceal their registration status or prey upon children.
IV. Federal law provides for district courts to decline supplemental jurisdiction over claims that involve complex or novel issues of state law and where there are other compelling reasons not to hear the case. This Court should decline to exercise supplement jurisdiction over the Headlee Amendment claim in this Complaint or, in the alternative, dismiss it for failing to state a claim.
1. The Court should decline to exercise supplemental jurisdiction over Plaintiffs’ Headlee Amendment claims.
28 USC 1367(a) provides, in pertinent part, that federal district courts may hear state claims that are part of the same case or controversy as a federal claim. However, 28 USC 1367(c) also provides circumstances under which a federal court may decline supplemental jurisdiction including when the claim raises a novel or
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complex issue of State law; or in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
In considering whether to exercise this supplemental jurisdiction and applying the enumerated factors, the Court should consider the relationship between the federal claims. The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. The state and federal claims must derive from a common nucleus of operative fact. Gibbs v. United Mine Workers, 383 U.S. 715, 725 (1966).
Plaintiffs’ complaint includes a variety of causes of action centering on application of the challenged statutory provisions to them. Plaintiffs’ Complaint also includes a claim brought under the “Headlee Amendment” of Michigan’s state constitution. Const 1963, art 9, §25-34. In general, the Headlee Amendment concerns state taxes and funding for local units of government, and does not concern the individual rights of any of the Plaintiffs. Further, it is not easily determined on the facts alleged. In this case, the nature of the claims are such that this Court should not exercise supplemental jurisdiction over the Headlee Amendment claims.
First, the Headlee claims are not, so related to federal claims "that they form part of the same case or controversy.” 28 USC §1367(a). The majority of Plaintiffs’ Complaint describes and relies on the alleged application of the challenged statutory provisions to them. The Headlee “taxpayer” claim which alleges that Michigan’s SORA imposes new obligations on local government without allocating funds to perform them—is not factually or practically connected with any of Plaintiffs substantive federal claims, let alone related enough that they are part of
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the same case or controversy. Plaintiffs’ Headlee claim does not satisfy the threshold for supplemental jurisdiction under §1367(a).
Second, at least two of the factors weighing against supplement jurisdiction in §1367(c) apply in this case. §1367(c)(1) provides that supplemental jurisdiction may be declined where novel or complex issues of State law are raised. §1367(c)(4) allows a court to decline jurisdiction where there are other compelling reasons. Both of these circumstances are satisfied here.
Headlee claims are exceedingly complex and intricately related to the interpretation of unique provisions of Michigan’s constitution. Headlee cases are grueling affairs that have been known to last for years—several cases have continued for over a decade. See Durant v. Michigan, 456 Mich 175; 566 NW2d 272 (1997); Adair I v. Michigan, 470 Mich 105; 680 NW2d 386 (2004). Headlee cases are taxpayer challenges to legislative action requiring local governments to perform a “new activity” but without an appropriation to pay for that activity. Const. 1963, art. 9, §29; M.C.L. 21.231 et. seq. This Court, however, has no jurisdiction to evaluate the appropriation of state funds, to require the appropriation of state funds; or to determine the amount of state funds that need to be appropriated prohibiting resolution of the claim. U.S. Const., Amend. XI; Pennhurst v. Halderman, 465 U.S. 89, 100, 101 (1984). Given these significant considerations, the Court should decline to exercise jurisdiction over this supplemental state constitutional claim. Gibbs, 383 U.S. at 725.
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2. Plaintiff has failed to make allegations sufficient to state a viable claim under Headlee.
Subsequent to adoption of the Headlee Amendment, the state legislature passed legislation enacting the new constitutional requirements. M.C.L. 21.231 et. seq. Owczarek v. Michigan, 276 Mich. App. 602, 604 (2007). Under these standards, when fees are implemented to pay for the government program or activity, Headlee is not implicated. For example, in Owczarek, the Michigan Court of Appeals analyzed whether a new statutory requirement that teachers receive criminal background checks violated Headlee. The Michigan Court of Appeals determined that it did not because the legislative mandate that teachers obtain a criminal background check was not an “activity” within the meaning of Headlee. Owczarek, 276 Mich App 609-10. Additionally, the school district could require the teachers' pay any cost, thus, obviating the need for an appropriation. A similar situation is presented here.
Plaintiffs are required to register as sex offenders, which in turn requires the submission of information to law enforcement—not altogether unlike the criminal background check in Owczarek. The amended statute does not require any new activities beyond additional information collected from the registrant as part of their registration. Plaintiffs have failed to identify any new, additional burdens on law enforcement as a result of the amendments to SORA. Even if collecting registration information were an “activity,” Plaintiffs have failed to make allegations that their filling in a few additional blanks on the registration form increased the costs to the local government in any way. Plaintiffs have failed to
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make allegations sufficient to identify a state-mandated activity upon local units of government, and so their Headlee claim must fail.
Further, even if SORA mandated local activity under Headlee, the sex offenders themselves pay a fee as part of the registration requirement. MCL 28.725b. Under that provision $20 of the $50 registration fee is paid to the local law enforcement agency collecting and inputting the registration information. MCL 28.725b(1). Consequently, the statute provides for funding through fees to be paid to local law enforcement agencies. Plaintiffs have offered no allegations stating this amount is insufficient to provide for any new “activity” required by SORA. Plaintiffs make vague allusions to a study conducted in Texas, but they fail to connect that study in any way to costs and activities here. It is noteworthy that Plaintiffs have not identified a single local government or police agency that has a complaint over the level of funding for SORA-related functions.
For these reasons, Plaintiffs’ state constitutional claim should be dismissed.
CONCLUSION AND RELIEF REQUESTED For these reasons, Defendants respectfully request that this Honorable Court enter an Order dismissing Plaintiffs’ complaint in its entirety and with prejudice, together with any other relief the Court finds appropriate under the circumstances.
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Dated: April 24, 2012

Respectfully submitted,
BILL SCHUETTE Attorney General
s/ Margaret A. Nelson Margaret A. Nelson (P30342) Erik A. Grill (P64713) Attorney for Defendants Michigan Department of Attorney General Public Employment, Elections & Tort Div P.O. Box 30736 Lansing, MI 48909 (517) 373-6434

CERTIFICATE OF SERVICE
I hereby certify that on April 24, 2012, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such.
s/Margaret A. Nelson______________________ Margaret A. Nelson (P30342) Erik A. Grill (P64713) Attorney for Defendants Michigan Department of Attorney General Public Employment, Elections & Tort Div P.O. Box 30736 Lansing, MI 48909 (517) 373-6434 Primary E-mail: nelsonm9@michigan.gov (P30342)

S:\PEET_Assignment_Control\Cases\Open\2012\Does, John USDC-ED 2012-0008045-A\BiS MTD.doc

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 2:12-cv-11194-RHC-DRG Doc # 21 Filed 05/25/12 Pg 1 of 47 Pg ID 486

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

______________________________________________________________________________

JOHN DOES #1-4 and MARY DOE,

Plaintiffs,

File No. 2:12-cv-11194

v.
RICHARD SNYDER, Governor of the State of Michigan, and COL. KRISTE ETUE, Director of the Michigan State Police, in their official capacities,

HON. ROBERT H. CLELAND MAG. JUDGE DAVID R. GRAND

Defendants. ______________________________________________________________________________

PLAINTIFFS’ BRIEF OPPOSING DEFENDANTS’ MOTION TO DISMISS

2:12-cv-11194-RHC-DRG Doc # 21 Filed 05/25/12 Pg 2 of 47 Pg ID 487
CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii INTRODUCTION .......................................................................................................................... 1 STANDARD OF REVIEW ............................................................................................................ 1 LEGISLATIVE HISTORY AND FRAMEWORK........................................................................ 2 ARGUMENT .................................................................................................................................. 4 I. SORA 2011 VIOLATES THE EX POST FACTO CLAUSE.................................................. 4
A. Kansas v. Hendricks and Kennedy v. Mendoza-Martinez Establish the Framework for Analyzing the Validity of SORA 2011 Under the Ex Post Facto Clause. ............................ 4
B. SORA 2011 is Fundamentally Different from the Alaska Statute which Survived a Hendricks/Kennedy Analysis in Smith v. Doe...................................................................... 5
C. Given the Breadth of the Restrictions Now Imposed, SORA 2011 Is Punishment that Cannot Be Imposed Retroactively. ..................................................................................... 8 1. Kennedy Factor #1: SORA 2011 Imposes Affirmative Obligations, Disabilities, and Restraints..................................................................................................................... 10 2. Kennedy Factor #2: SORA 2011 Imposes Sanctions that Historically Have Been Considered Punishment. ............................................................................................. 13 3. Kennedy Factor #3: SORA 2011 Typically Requires a Finding of Criminal Scienter. ...................................................................................................................... 16 4. Kennedy Factor #4: SORA 2011 Serves the Traditional Aims of Punishment. ......... 17 5. Kennedy Factor #5: SORA 2011 Applies Only to Behavior Which Is a Crime. ........ 17 6. Kennedy Factor #6: SORA 2011 Is Not Rationally Related to a Non-Punitive Interest. ........................................................................................................................ 17 7. Kennedy Factor #7: SORA 2011 Is Excessive in Relation to Non-Punitive Interests.21
II. SORA 2011 RESTRICTS FUNDAMENTAL RIGHTS AND IS THEREFORE SUBJECT TO STRICT SCRUTINY. ...................................................................................................... 22 A. SORA 2011 Unconstitutionally Interferes with Plaintiffs’ Right to Travel. .................... 23 B. SORA 2011 Unconstitutionally Interferes with Plaintiffs’ Right to Engage in the Common Occupations of Life........................................................................................... 24 C. SORA 2011 Unconstitutionally Interferes with Plaintiffs’ Right to Direct the Education and Upbringing of their Children...................................................................................... 26 D. SORA 2011 Unconstitutionally Interferes with Plaintiffs’ Right to Free Speech. ........... 27
III. RETROACTIVE APPLICATION OF SORA 2011 VIOLATES DUE PROCESS............... 28 IV. MANY PROVISIONS OF SORA 2011 ARE VOID FOR VAGUENESS, ARE IMPOSSIBLE
TO COMPLY WITH, AND WRONGLY IMPOSE STRICT LIABILITY. ............................... 31
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2:12-cv-11194-RHC-DRG Doc # 21 Filed 05/25/12 Pg 3 of 47 Pg ID 488 V. THE COURT CAN AND SHOULD ASSERT SUPPLEMENTAL JURISDICTION OVER
PLAINTIFFS’ HEADLEE CLAIM........................................................................................ 34 CONCLUSION............................................................................................................................. 35 INDEX OF EXHIBITS................................................................................................................. 37
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TABLE OF AUTHORITIES Cases Adair v. State, 785 N.W.2d 119 (Mich. App. 2010) ..................................................................... 35 Campanella v. Commerce Exch. Bank, 137 F.3d 885 (6th Cir. 1998).......................................... 34 Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009)............................................... 12, 17, 18, 22 Connally v. General Const. Co., 269 U.S. 385 (1926) ................................................................. 31 Cunney v. Bd. of Trs., 660 F.3d 612 (2nd Cir. 2011).................................................................... 32 Dent v. West Virginia, 129 U.S. 114 (1889) ................................................................................. 25 Doe v. City of Albuquerque, 667 F.3d 111 (10th Cir. 2012)......................................................... 28 Doe v. District Attorney, 932 A.2d 552 (Me. 2007) ................................................................... 7, 8 Doe v. Jindal, __ F.Supp.2d __, 2012 WL 540100 (M.D. Louis. 2012) ...................................... 28 Doe v. Michigan Dept. of State Police, 490 F.3d 491 (6th Cir. 2007).......................................... 31 Doe v. Schwarzenegger, 476 F. Supp.2d 1178 (E.D. Cal. 2007).................................................. 12 Elwell v. Township of Lower, 2006 WL 3797974 (N.J. Super. Ct. 2006) .............................. 12, 27 F.R. v. St. Charles County Sheriff’s Dept., 301 S.W.3d 56 (Missouri 2010) ............................... 12 Frank v. Dana Corp., 646 F.3d 954 (6th Cir. 2011)....................................................................... 1 Gibbs v. United Mine Workers, 383 U.S. 715 (1966)............................................................. 34, 35 Grayned v. City of Rockford, 408 U.S. 104 (1972)....................................................................... 31 Hampton v. Mow Sun Wong, 426 U.S. 88 (1976)......................................................................... 25 I.N.S. v. St. Cyr, 533 U.S. 289 (2001) ..................................................................................... 29, 30 Johnson v. Cincinnati, 310 F.3d 484 (6th Cir. 2003) ............................................................. 23, 27 Kansas v. Hendricks, 521 U.S. 346 (1997)................................................................................. 4, 5 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)..................................................................... 5
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Lambert v. California, 355 U.S. 225 (1957)................................................................................. 33 Landgraf v. USI Film Products, 511 U.S. 244 (1994) ............................................................ 28, 29 M.L.B. v. S.L.J., 519 U.S. 102 (1996) ........................................................................................... 26 Meyer v. Nebraska, 262 U.S. 390 (1923) ..................................................................................... 24 Mikaloff v. Walsh, 2007 WL 2572268 (N.D. Ohio 2007)............................................... 8, 9, 12, 14 Morissette v. U.S., 342 U.S. 246 (1952) ....................................................................................... 33 Morrissey v. Brewer, 408 U.S. 471 (1972) ................................................................................... 14 Owczarek v. Michigan, 742 N.W.2d 380 (Mich. App. 2007)....................................................... 35 Padilla v. Kentucky, 130 S.Ct. 1473 (2010) ................................................................................. 30 People v. Cole, __N.W.2d__ (Mich., May 25, 2012) ................................................................... 30 People v. Dipiazza, 778 N.W.2d 264 (Mich. App. 2009)............................................................. 21 Planned Parenthood v. Farmer, 220 F.3d 127 (3rd Cir. 2000) .................................................... 32 Poe v. Snyder, _ F. Supp. 2d __, 2011 WL 6781361 (W.D. Mich. 2011) .................................... 33 R.L. v. Mo. Dep’t of Corr., 245 S.W.3d 236 (Mo. 2008).............................................................. 12 Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) .................................................... 28 Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232 (1957) ................................. 25 Severe Records, LLC v. Rich, 658 F.3d 571 (6th Cir. 2011............................................................ 2 Smith v. Doe, 538 U.S. 84 (2003) .......................................................................................... passim Stanley v. Georgia, 394 U.S. 557 (1969) ...................................................................................... 27 State v. Letalien, 985 A.2d 4 (Me. 2009)................................................................................ 10, 17 State v. Pollard, 908 N.E.2d 1145 (Ind. 2009) ................................................................. 12, 14, 22 State v. Williams, 952 N.E.2d 1103 (Ohio 2011) ....................................................................... 9, 13 Trop v. Dulles, 356 U.S. 86 (1958)................................................................................................. 7
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Troxel v. Granville, 530 U.S. 57 (2000) ....................................................................................... 26 Truax v. Raich, 239 U.S. 33 (1915) .............................................................................................. 25 U.S. Trust Co. of New York v. New Jersey, 431 U.S. 1 (1977) ............................................... 29, 31 U.S. v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010)....................................................... 33 U.S. v. Barnes, 278 F.3d 644 (2002)............................................................................................. 30 U.S. v. Barton, 455 F.3d 649 (6th Cir. 2006)................................................................................ 29 U.S. v. Guest, 383 U.S. 745 (1966)............................................................................................... 23 U.S. v. Juvenile Male, 131 S.Ct. 2860 (June 27, 2011) .................................................................. 8 U.S. v. Juvenile Male, 590 F.3d 924 (9th Cir. 2009) ................................................................ 8, 16 U.S. v. Wheeler, 254 U.S. 281 (1920)........................................................................................... 23 Veneklase v. Bridgewater Condos, L.C., 670 F.3d 705 (6th Cir. 2012) ....................................... 34 Wallace v. State, 905 N.E.2d 371 (Ind. 2009) ....................................................................... passim Washington v. Glucksberg, 521 U.S. 702 (1997) ................................................................... 22, 23 Wayne County Chief Exec. v. Governor, 583 N.W.2d 512, 517 (1998) ....................................... 35 Welch v. Henry, 305 U.S. 134 (1938) ........................................................................................... 29 Whitaker v. Perdue, 4:06-cv-0140 (N.D. Georgia, March 30, 2007) ..................................... 15, 22 Williams v. Fears, 179 U.S. 270 (1900) ....................................................................................... 23 Willner v. Committee on Character and Fitness, 373 U.S. 96 (1963).......................................... 25 Statutes 18 U.S.C. § 3563(b)(5)(2)............................................................................................................. 26 28 U.S.C. § 1367(a) ...................................................................................................................... 34 28 U.S.C. § 1367(c) ................................................................................................................ 34, 35 28 U.S.C. § 994............................................................................................................................. 14
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M.C.L. § 28.721 .............................................................................................................................. 1 M.C.L. § 28.721a ...................................................................................................................... 8, 17 M.C.L. § 28.722 .............................................................................................................................. 2 M.C.L. § 28.722(b) ....................................................................................................................... 16 M.C.L. § 28.722(g) ......................................................................................................................... 3 M.C.L. § 28.723 .............................................................................................................................. 2 M.C.L. § 28.725 .............................................................................................................................. 2 M.C.L. § 28.725(1) ................................................................................................................... 3, 24 M.C.L. § 28.725(1)(e)................................................................................................................... 24 M.C.L. § 28.725(1)(f) ................................................................................................................... 28 M.C.L. § 28.725(12) ....................................................................................................................... 2 M.C.L. § 28.725(6) (2010).............................................................................................................. 2 M.C.L. § 28.725(g) ....................................................................................................................... 32 M.C.L. § 28.725a(3) ........................................................................................................... 3, 24, 34 M.C.L. § 28.725a(6) ....................................................................................................................... 3 M.C.L. § 28.725a(7) ..................................................................................................................... 34 M.C.L. § 28.725b(3) ....................................................................................................................... 3 M.C.L. § 28.727(1) ....................................................................................................................... 28 M.C.L. § 28.727(1)(i) ................................................................................................................... 28 M.C.L. § 28.728(1)(e)................................................................................................................... 24 M.C.L. § 28.728(2)(d)................................................................................................................... 25 M.C.L. § 28.729(2) ................................................................................................................. 33, 34 M.C.L. § 28.733(e) ....................................................................................................................... 32
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M.C.L. § 28.734 .............................................................................................................................. 2 M.C.L. § 28.734(1)(a)................................................................................................................... 25 M.C.L. § 28.734(1)(b)............................................................................................................. 24, 27 M.C.L. § 28.734(2) ............................................................................................................... 3, 9, 33 M.C.L. § 28.735(2) ............................................................................................................... 3, 9, 33 M.C.L. § 762.11 ............................................................................................................................ 30 M.C.L. § 762.14 ............................................................................................................................ 31 Mich. Pub. Act 121 (2005) ............................................................................................................. 2 Mich. Pub. Act 127 (2005) ............................................................................................................. 2 Mich. Pub. Act 17 (2011) ............................................................................................................... 2 Mich. Pub. Act 17-18 (2011) .......................................................................................................... 2 Mich. Pub. Act 18 (2011) ............................................................................................................... 2 Mich. Pub. Act 237 (2004) ............................................................................................................. 2 Mich. Pub. Act 238 (2004) ............................................................................................................. 2 Mich. Pub. Act 295 (1994) ....................................................................................................... 2, 31 Mich. Pub. Act 46 (2006) ............................................................................................................... 2 Mich. Pub. Act 542 (2002) ......................................................................................................... 2, 8 Mich. Pub. Act 85 (1999) ............................................................................................................... 2 Public Act 286 of 1994 ................................................................................................................... 2 Public Act 287 of 1994 ................................................................................................................... 2 Public Act 295 of 1994 ................................................................................................................... 2 Public Act 355 of 1994 ................................................................................................................... 2
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Other Authorities Amanda Y. Agan, Amanda, Sex Offender Registries: Fear Without Function? (December 1,
2008) ......................................................................................................................................... 18 Andrea Yang, Historical Criminal Punishments, Punitive Aims and Un-“Civil” Post-Custody
Sanctions on Sex Offenders, 75 U. Cinn. L. Rev. 1299 (2007) ................................................ 14 Beckett & Herbert, Banished: The New Social Control in Urban America (2010) ..................... 14 Blood, Watson, & Stageberg, Iowa Department of Criminal and Juvenile Justice Planning, State
Legislation Monitoring Report (2008)...................................................................................... 19 Bob Vasquez, The Influence of Sex Offender Registration and Notification Laws in the United
States, 54 Crime & Delinquency 175 (2008)............................................................................ 18 Henry M. Hart, The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401 (1958)............ 15 Iowa County Attorneys Association, Statement on Sex Offender Residency Restrictions in Iowa
(Dec. 11, 2006) ......................................................................................................................... 20 Minn. Dep’t of Corr., Level Three Sex Offender Residential Placement Issues: 2003 Report to
the Legislature 9 (2003)............................................................................................................ 19 Minnesota Department of Corrections, Residential Proximity and Sex Offense Recidivism in
Minnesota (2007) ...................................................................................................................... 19 Misguided Measures, ABC News (March 7, 2007)...................................................................... 20 Richard Tewksbury, Collateral Consequences of Sex Offender Registration, 21 J. Contemp.
Crim. Just. 67 (2005) ................................................................................................................ 11 Richard Zevitz & Mary Ann Farkas, Sex Offender Community Notification: Managing High Risk
Criminals or Exacting Further Vengeance?, 18 Behav. Sci. & Law 375 (2000)..................... 11 Zandbergen, et al., Residential Proximity to Schools and Daycares: An Empirical Analysis of Sex
Offense Recidivism, 37 Criminal Justice and Behavior 482 (2010).......................................... 19
Rules Fed. R. Civ. Proc. 12(b)(6) ............................................................................................................. 1
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INTRODUCTION The five plaintiffs have been retroactively required to comply with Michigan’s Sex Offender Registration Act for the rest of their lives. See M.C.L. § 28.721, et seq., as amended July 1, 2011 (“SORA 2011”). Although plaintiffs have been found to be very low risk of reoffending, see Fay-Dumaine Decl. (Exh. 10), for as long as they live, plaintiffs are: • subject to constant supervision by law enforcement; • required to report frequently and in person to law enforcement; • banned from living or working in many areas; • severely restricted in when they can travel; • limited in their rights to free speech; • restricted from maintaining normal family relationships; • identified publicly and falsely as dangerous; and • subjected to a vast array of state-imposed restrictions encompassing every facet
of their lives. See Obligations, Disabilities, and Restraints Imposed by SORA 2011. (Exh. 1.)
This Court should reject defendants’ motion to dismiss, which in essence argues that sex offender registration is a Constitution-free zone, and that there are no limits on what the state can do to registrants. Amendments to SORA 2011 have transformed what was once a civil law into a criminal statute imposing punishment. Courts across the country – including in Ohio, Indiana, Maine, Alaska, Kentucky, and the Ninth Circuit – have held that the retroactive application of similar laws violates the Ex Post Facto Clause. Plaintiffs ask this Court to recognize what those courts have held: the nature of sex offender laws has fundamentally changed.
STANDARD OF REVIEW On a motion under Fed. R. Civ. P. 12(b)(6), “[a]ll facts in the complaint must be accepted as true.” Frank v. Dana Corp., 646 F.3d 954, 958 (6th Cir. 2011). The facts alleged must simply state a claim for relief that is plausible on its face. Id. The Court “must review the complaint in the light most favorable to Plaintiffs, accept their factual allegations as true, and determine
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whether Plaintiffs undoubtedly can prove no set of facts in support of [their] claims that would entitle [them] to relief.” Severe Records, LLC v. Rich, 658 F.3d 571, 578 (6th Cir. 2011).
LEGISLATIVE HISTORY AND FRAMEWORK Michigan’s Sex Offender Registration Act, as first enacted on October 1, 1995, created a non-public database of persons convicted of sex offenses. See Mich. Pub. Acts 286, 287, 295, 355 of 1994. Database information was available only to law enforcement. Mich. Pub. Acts 295, Sec. 10(1) (1994). The legislature has since repeatedly amended SORA, each time imposing new burdens. Compl. ¶¶ 84-103; Mich. Pub. Acts 85 (1999); 542 (2002); 237 (2004); 238 (2004); 121 (2005); 127 (2005); 46 (2006); 17-18 (2011). Two sets of changes are particularly important. First, effective January 1, 2006, registrants cannot reside, work, or “loiter” within 1000 feet of a school. Mich. Pub. Acts 121, 127 (2005). Registrants are barred from living or working in many areas, and the “loitering” prohibition has been applied to bar them from involvement in their children’s education. M.C.L. §§ 28.734-35; Attorney General Letter (7/14/06) (Exh. 14). Second, effective July 1, 2011, the legislature enacted further sweeping changes. Mich. Pub. Acts 17, 18 (2011). The new law classifies registrants into tiers: Tier I must register for 15 years, Tier II for 25 years, and Tier III for life. M.C.L. § 28.725(10)-(13). Tier classification is not based on risk, but is based solely on the conviction. M.C.L. § 28.722(r)-(v). Plaintiffs, though unlikely to reoffend, are classified as Tier III. In addition, SORA 2011 extended the registration period for thousands of registrants (including the plaintiffs) from 25 years to life. Compare M.C.L. § 28.725(6) (2010), with M.C.L. § 28.725(12) (2011); see Compl. ¶ 285 (80% Tier III). SORA 2011 is retroactive, applying not just to those convicted after July 1, 2011, but to all individuals already registered. M.C.L. § 28.723. SORA 2011 even captures those convicted before the registry was created in 1995. M.C.L. § 28.723(1)(b), (1)(c), (3); Compl. at ¶¶ 15-28.
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The requirements of SORA 2011 are so extensive that they cannot be fully set out here, and are instead listed in Exh. 1. As Tier III registrants, plaintiffs must report in person every three months, and must do so within a specified 15-day period each quarter, for the rest of their lives. M.C.L. § 28.725a(3). Registrants must provide extensive personal information, a regularly updated photo, fingerprints, and palm prints. See Obligations, Disabilities and Restraints, at 3-5, 8 (Exh. 1). In addition to reporting in person at regular intervals, registrants must report in person “immediately” (i.e., within three business days) whenever certain information changes. M.C.L. §§ 28.725(1). 28.722(g). There are no good-cause exceptions to these reporting requirements. Violations of SORA 2011 carry a range of criminal sanctions, up to ten years imprisonment; there are no civil sanctions. M.C.L. §§ 28.729, 28.734(2), 28.735(2).
The number of legal restrictions imposed on registrants “has exploded over the last twenty years and especially during the last decade,” with ever more severe conditions being added. Prescott Decl. at 10 (Exh. 8). Because plaintiffs are subject to SORA 2011, they must comply not only with that law, but also with a vast array of other restrictions imposed by federal law, other Michigan laws, the laws of other states, and local ordinances. See Consequences Triggered by Michigan Sex Offender Registration: A National Sample (Exh. 8, Att. A). These additional restrictions flow from the person’s status as a registrant, meaning that “registration requirements have become indistinguishable … from the package of myriad restrictions and obligations that legislatures have enacted in recent years.” Prescott Decl. at 10 (Exh. 8).
In sum, Michigan’s registry, which was created in 1995 as a non-public law enforcement database, has changed dramatically over the last 17 years. Registration today no longer simply involves publication of conviction information. Rather, it is coupled with a staggering array of criminally-enforced legal restrictions that are contained in SORA 2011 or are triggered by it.
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ARGUMENT I. SORA 2011 VIOLATES THE EX POST FACTO CLAUSE. A. Kansas v. Hendricks and Kennedy v. Mendoza-Martinez Establish the Framework
for Analyzing the Validity of SORA 2011 Under the Ex Post Facto Clause. There are two possible ways SORA 2011 could have been crafted so that it would not violate the Ex Post Facto Clause. First, it could have been designed as criminal punishment for newly convicted offenders. Of course if SORA 2011 was designed to punish, then it could not apply retroactively, since the Ex Post Facto Clause bars retroactive punishment. Second, SORA 2011 could have been designed as civil regulation of individuals who are found to be dangerous. The Constitution allows severe restraints to be imposed on persons who are individually determined to be dangerous. Kansas v. Hendricks, 521 U.S. 346 (1997) (upholding involuntary commitment of sexually violent persons). Such restraints on liberty are not considered punishment because they “unambiguously require[] a finding of dangerousness.” Id. at 357. Restraints cannot be based simply on a prior conviction, but must turn on an individualized, regularly-reviewed, procedurally-safeguarded finding that the individual is likely to re-offend. Id. at 368-69. Thus, in Hendricks the Court held that the state’s intent was not punitive because it “permitted immediate release upon a showing that the individual is no longer dangerous.” Id. Restrictions on liberty are permissible, then, provided there is an individualized showing of dangerousness. But SORA 2011 applies without any case-by-case consideration of whether registrants actually pose a threat to the public. SORA 2011 violates the Ex Post Facto Clause because it meets neither the standard for criminal punishment (since it is retroactive) nor the standard for civil regulation of dangerous persons (since it imposes severe restrictions without any individualized determination). Defendants, recognizing that SORA 2011 cannot be justified as criminal punishment, argue that
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the law should be considered regulatory, despite the absence of individualized assessment, and that therefore the Ex Post Facto Clause does not apply.
As the Supreme Court explained in Hendricks, 521 U.S. at 361, when evaluating an ex post facto claim, a court must first determine whether the legislature intended the statute to be civil or criminal. If the purpose is to impose punishment, that ends the inquiry. Smith v. Doe, 538 U.S. 84, 92 (2003). But if the legislature intended to enact a regulatory scheme that is civil and non-punitive, the court must further examine whether that scheme is “so punitive either in purpose or effect as to negate the State’s intention to deem it ‘civil.’” Hendricks, 521 U.S. at 361.
In order to determine whether a purportedly civil law is in fact punitive, courts apply the seven-factor test set out in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963):
[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned. Id. at 168-69 (bracketed numbers added). Interwoven into this analysis is the question of whether individualized assessment (as in Hendricks) is required for a scheme to qualify as regulatory. In balancing the Kennedy factors, courts must recognize that the factors “often point in differing directions,” and no one factor is determinative. Kennedy, 372 U.S. at 169. B. SORA 2011 is Fundamentally Different from the Alaska Statute which Survived a Hendricks/Kennedy Analysis in Smith v. Doe. In Smith v. Doe, 538 U.S. 84 (2003), a fractured Court applied the tests of Hendricks and Kennedy to find that the retroactive application of an Alaska registration statute did not violate the Ex Post Facto Clause. The majority first concluded under Hendricks that Alaska intended to establish a civil, non-punitive scheme. Id. at 96. It then applied the Kennedy factors. The
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majority found that in-person reporting was not required; that registrants were “free to move where they wish and to live and work as other citizens, with no supervision” and were “free to change jobs or residences;” that there was “no evidence that the Act has led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred;” that the “Act does not restrain activities sex offenders may pursue;” and that the consequences of the Act “flow[ed] not from the Act’s registration and dissemination provision, but from the fact of conviction.” Id. at 100-01. The Court concluded that Alaska’s registration scheme resulted in only “minor and indirect” consequences that were reasonably related to the state’s objectives. Id. at 100, 105. Because the Act imposed only the “minor condition of registration,” individualized assessments were not required, unlike in Hendricks, where the “magnitude of the restraint” mandated case-by-case determinations of dangerousness. Id. at 104.
The legal and factual assumptions that were dispositive in Smith are no longer true for Michigan’s registry today. Taking the allegations as true, the complaint states that, unlike in Smith, SORA 2011 (a) severely limits plaintiffs’ ability to direct the upbringing of their children, find housing and employment, get an education, travel, engage in free speech, be free from harassment/stigma, and understand what is legally required of them; (b) subjects plaintiffs to inperson supervision that is more onerous than what they experienced while serving sentences on probation/parole; and (c) publicly and falsely identifies them as among the most dangerous sex offenders on the registry. Compl. at ¶¶ 116-234, 276-77. The severe harms suffered by plaintiffs flow not from the fact of conviction, but from registration under the Act. Compl. ¶¶ 115-127, 131-144, 151-161, 168-180, 183-190, 196-207, 210-213. Plaintiffs further allege that (a) public registries and geographic restrictions are likely to increase, rather than decrease recidivism, and are therefore counterproductive to their avowed public safety goals; (b) the reporting
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requirements, tier classifications, and geographic restrictions bear no reasonable relationship to risk; (c) actuarial risk assessment tools are far better at predicting recidivism risk than the fact of a conviction; and (d) individualized risk assessments show that plaintiffs here pose a very low risk to reoffend. Compl. ¶¶ 235-71. Unlike in Smith, the consequences of SORA 2011 are not “minor and indirect,” but encompass every facet of plaintiffs’ lives. Moreover, the complaint and incorporated expert reports, refute any purported public safety justifications. Compl. ¶ 235.
Defendants proffer their own alternative facts, arguing that registration is no burden: reporting is less onerous than on probation/parole; reporting requirements have not changed much; SORA 2011 does not restrain the activities plaintiffs may pursue; employment is not restricted; plaintiffs are free to move and travel; and there is no scientific support for individualized risk assessment. Motion to Dismiss at 2, 5, 9-11, 16 (Dkt. 14). While defendants may try to prove their alternative facts in the course of this litigation, at this stage in the proceedings the Court must accept plaintiffs’ allegations as true. Doe v. District Attorney, 932 A.2d 552 (Me. 2007) (disputes about whether the increasingly severe registration consequences changed the statute’s effect from civil to punitive precluded dismissal of an ex post facto claim). The facts, as pled, demonstrate that SORA 2011 is substantially different from, and much more punitive than, any registration statute ever upheld by the Supreme Court or the Sixth Circuit.1
Because SORA 2011 has never previously been challenged in court, and because the Sixth Circuit has never considered a registry scheme that imposes such sweeping restrictions, this case presents an issue of first impression. As the Ninth Circuit noted in holding that retroactive application of federal registration requirements to juveniles violates the Ex Post Facto
1 In Trop v. Dulles, 356 U.S. 86 (1958), the U.S. Supreme Court considered a regime that was, in many ways, strikingly similar to SORA 2011, namely denaturalization. The High Court rejected the government’s claims that denaturalization was not punishment: “There may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual’s status in organized society. … [the individual has] lost the right to have rights.” Id. at 101-102. The Michigan law at issue here is at least as destructive.
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Clause, while “[i]t would be tempting to conclude…that in light of [Smith], sex offender registration does not constitute punishment, … the case before us presents substantially different facts and issues that significantly affect our analysis.” U.S. v. Juvenile Male, 590 F.3d 924, 931 (9th Cir. 2009), vacated as moot, 131 S. Ct. 2860 (June 27, 2011).2 The Ninth Circuit accorded Smith “its full precedential weight,” but concluded that the impact of retroactive registration in that case was “different both in nature and degree” from what the Supreme Court had considered in Smith. Id. at 933. As in Juvenile Male, the question is not whether prior registry schemes were constitutional, but whether SORA 2011’s extreme restrictions can be made retroactive. See Doe, 932 A.2d at 560 (prior decisions upholding Maine’s registration statute did not bar ex post facto challenge where “a challenger can demonstrate that, through amendments, the Legislature changed the character and effects of [the law] from civil to criminal”). C. Given the Breadth of the Restrictions Now Imposed, SORA 2011 Is
Punishment that Cannot Be Imposed Retroactively. Under Hendricks, the first step in the ex post facto analysis is to determine whether the legislature intended SORA 2011 to be punishment. The current statement of intent, M.C.L. § 28.721a, was not appended to the statute until eight years after the registry was first created. Mich. Pub. Act. 542, Sec.1a (2002). It was enacted by a different legislature than the one which created the registry, or which passed SORA 2011. No legislative declaration was adopted when the geographic restrictions were enacted in 2006, or when the 2011 amendments were added. See Mikaloff v. Walsh, 2007 WL 2572268, at*5-7 (N.D. Ohio 2007) (unpub.) (Exh. 16) (Ohio’s residency law was punitive because, while legislature had asserted a non-punitive purpose for registration itself, the legislature was silent on the purpose for residency restrictions).
2 The Ninth Circuit’s decision was vacated because the Supreme Court found that expiration of the underlying sentence and supervision order made the case moot. The Court did not disturb the Ninth Circuit’s legal analysis.
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Plaintiffs have appended statements by legislators that suggest a punitive intent. Rep. Nofs described the residency restrictions as “the price they pay” for crime, and Rep. Jones argued for inclusion of first-offense indecent exposure on the registry to “mak[e] sure it has serious consequences.” MIRS Reports (Exh. 15). Although a law may ostensibly be regulatory:
…it would be naive to look no further, given pervasive attitudes toward sex offenders. The fact that the Act uses past crime as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions to impose burdens that outpace the law’s stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones. Smith, 538 U.S. at 108-09 (Souter, J., concurring) (citations omitted). Significantly, SORA 2011 is codified in Chapter 28 of the Michigan Code, which concerns state police enforcement activities. Id. at 94 (manner of codification is probative of legislature’s intent). The statute imposes criminal, rather than civil sanctions. M.C.L. §§ 28.729, 28.734(2), 28.735(2). A statute containing sentencing provisions cannot reasonably be described as civil. Mikaloff, 2007 WL 2572268, at*5-7 (Exh. 16). Even if this Court were to find that the legislative intent was civil, SORA 2011 – as it now exists – is so punitive in effect that it is punishment. What arguably began as a regulatory scheme designed to aid law enforcement has expanded dramatically. A statute’s constitutionality must be reevaluated as that statute evolves over time. State v. Williams, 952 N.E.2d 1103 (Ohio 2011) (although sex offender statute had previously been upheld, amendments rendered it unconstitutional). Indeed, the flexible nature of the Kennedy factors evidences the Supreme Court’s recognition that there is a sliding scale between purely remedial and purely punitive statutes, so that changes to a law can tip the balance from one to the other. Here, consideration of the Kennedy factors demonstrates that SORA 2011 is punitive.
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1. Kennedy Factor #1: SORA 2011 Imposes Affirmative Obligations, Disabilities, and Restraints. SORA 2011 imposes extensive affirmative obligations, disabilities, and restraints. See
Exh. 1. Because plaintiffs were retroactively reclassified as Tier III, they are subject to all of these restrictions for life. Compl. ¶¶ 115-230 (SORA 2011 impacts all major areas of plaintiffs’ lives, including child-rearing, housing, work, school, travel, speech, and social interaction). As noted above, registration under SORA 2011 also triggers a huge number of additional restrictions under a complex web of other federal, state, or local laws. See Consequences Triggered by Michigan Sex Offender Registration: A National Sample (Exh. 8, Att. A). A compendium of just the most significant state laws exceeds 1000 pages. Compl. ¶ 232.
Many of the restrictions imposed by SORA 2011 were never considered in Smith because they were not part of the Alaska statute. To the extent that there are similarities between SORA 2011 and the Alaska statute, however, the disabilities and restraints here, unlike those considered in Smith, are not “minor and indirect.” Smith, 538 U.S. at 100.
First, plaintiffs must report forever in person every three months, must disclose extensive private information for posting on the Internet, and must re-register in person within three days whenever certain information (such as an email address) changes. These in-person reporting obligations are fundamentally different from the quarterly verification requirements in Smith, which the Court specifically noted did not require in-person reporting. Id. at 101.
Numerous courts have found that intrusive reporting constitutes an affirmative restraint. The Maine Supreme Court held that successive amendments to that state’s registry law had converted it to a criminal statute so that retroactive application violated both the U.S. and Maine Constitutions. State v. Letalien, 985 A.2d 4, 12 (Me. 2009). The Court focused on the fact that reporting was “undoubtedly a form of significant supervision by the state.” Id. at 12.
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[I]t belies common sense to suggest that a newly imposed life-time obligation to report to a police station every ninety days to verify one’s identification, residence, and school, and to submit to fingerprinting and provide a current photograph, is not a substantial disability or restraint on the exercise of individual liberty. Id. at 24-25. Similarly, in Wallace v. State, 905 N.E.2d 371, 379-80 (Ind. 2009), the Indiana Supreme Court found its registry statute violated the state constitution’s Ex Post Facto Clause because the law “imposes significant affirmative obligations and a severe stigma…, and compels affirmative post-discharge conduct (mandating registration, re-registration, disclosure of public and private information, and updating of that information) under threat of prosecution.” Second, SORA 2011 goes far beyond the Alaska statute upheld in Smith because it bars registrants from living, working, or “loitering” in vast regions of the state, particularly in urban areas. Such geographic exclusion zones have the practical effect of severely restricting access to housing and employment, and of limiting the ability to engage in normal human activity. Compl. ¶276-77; Wagner Decl., at 6-11 (Exh. 11). Moreover, unlike in Smith, today there is voluminous evidence that registration “has led to substantial occupational or housing disadvantages.” Smith, 538 U.S. at 101. See Levenson Decl., at 5 (Exh. 9) (discussing how “residential restrictions profoundly reduce housing options”); Richard Tewksbury, Collateral Consequences of Sex Offender Registration, 21 J. Contemp. Crim. Just. 67, 75 (2005) (study of Kentucky registrants found 42.7% of respondents lost jobs and 45.3% lost housing after being listed on publicly accessible registries); Richard Zevitz & Mary Ann Farkas, Sex Offender Community Notification: Managing High Risk Criminals or Exacting Further Vengeance?, 18 Behav. Sci. & Law 375, 381 (2000) (Wisconsin study found 83% percent reported exclusion of residence and 57% reported loss of employment as a direct result of community notification). Courts, in striking down the latest registration statutes have repeatedly focused on the severe impact that registration and geographic restrictions have on housing and employment. In
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Commonwealth v. Baker, 295 S.W.3d 437, 439 (Ky. 2009), the state supreme court held that the retroactive application of a residency restriction violated the Ex Post Facto Clauses of the U.S. and Kentucky Constitutions. The court found it “difficult to imagine that being prohibited from residing within certain areas does not qualify as an affirmative disability or restraint.” Id. at 445. Similarly in State v. Pollard, 908 N.E.2d 1145 (Ind. 2009), the Indiana Supreme Court held that residency provisions violated the state Ex Post Facto Clause. The statute imposed a restraint that, unlike in Smith, was “neither minor nor indirect,” but rather created “a substantial housing disadvantage” that limited “one’s freedom to live on one’s own property.” Id. at 1150. See also Wallace, 905 N.E.2d at 380 (registration was a disability because it resulted in lost employment opportunities and housing discrimination); Juvenile Male, 590 F.3d at 935 (invalidating registration statute that “seriously jeopardizes the ability of [registrants] to obtain employment, housing, and education”); Mikaloff, 2007 WL 2572268, at *8 (unpub.) (residency law “imposes an onerous affirmative disability and restraint”) (Exh. 16); F.R. v. St. Charles County Sheriff’s Dept., 301 S.W.3d 56 (Missouri 2010) (retroactive application of residency restriction violated state constitution); R.L. v. Mo. Dep’t of Corr., 245 S.W.3d 236 (Mo. 2008) (same); Elwell v. Township of Lower, 2006 WL 3797974, at 17 (N.J. Super. Ct. 2006) (unpub.) (Exh. 17) (residency and loitering restriction violated Ex Post Facto Clause because it did not consider individual registrants’ likelihood to reoffend); Doe v. Schwarzenegger, 476 F. Supp.2d 1178, 1181 (E.D. Cal. 2007) (applying residency law “retroactively would raise serious ex post facto concerns”).
Third, the Smith Court found that the consequences suffered by registrants flowed not from the Act, “but from the fact of conviction, already a matter of public record.” Smith, 538 U.S. at 101. That is not true here. Plaintiffs’ harms result not from their convictions, but from SORA 2011. But for SORA 2011, plaintiffs would not be banned from living, working or
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“loitering” in much of the state; be prohibited from watching their children’s sports events or graduations; be subjected to continuous reporting; be restricted in their ability to travel or ability to communicate on the Internet; and be identified publicly and falsely as among the most dangerous of offenders. While a conviction for a sex offense will surely have some impact on a person’s employment, housing, and social opportunities, SORA 2011 does not simply inform potential employers, landlords, and the public of convictions. Rather, it imposes extensive, legally-mandated limitations on employment, housing, and other ordinary activity. Moreover, all of the consequences suffered by John Doe #1 (who was convicted of a non-sex offense) and John Doe #2 (whose record is sealed and would not otherwise be known to employers, landlords or the public), are directly attributable to SORA 2011. Compl. ¶¶ 15-45.
In sum, the pervasive burdens imposed by SORA 2011 bear no resemblance to the “minor and indirect” consequences upheld in Smith. The cumulative effect of SORA 2011’s obligations and restraints is to convert the Michigan law from a regulatory statute to a punitive one, the same as the Ohio Supreme Court held with respect to that state’s latest registry scheme. Williams, 952 N.E.2d 1103. The Ohio court, which had upheld an earlier version of the law, concluded:
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. When we consider all the changes enacted by [the new statute] in the aggregate, we conclude that imposing the current registration requirements on a sex offender whose crime was committed prior to the enactment of [the law] is punitive. Id. at 1113. 2. Kennedy Factor #2: SORA 2011 Imposes Sanctions that Historically Have Been Considered Punishment. SORA 2011 imposes sanctions that closely resemble several different historical forms of punishment: probation and parole, banishment, occupational disbarment, and shaming. First, the continual in-person reporting requirements are similar to probation or parole,
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which are prototypical forms of punishment. See Morrissey v. Brewer, 408 U.S. 471, 477 (1972). Residency, occupational, and travel restrictions are also typical of parole/probation supervision. Courts striking down SORA schemes as ex post facto violations have frequently compared the supervision of registrants to the supervision of parole/probationers. See, e.g., Doe v. State, 189 P.3d 999, 1012 (Alaska 2008); Pollard, 908 N.E.2d at 1151; Wallace, 905 N.E.2d at 380; Mikaloff, 2007 WL 2572268, at *10 (Exh. 16).
While the Smith majority rejected an analogy between Alaska’s statute and probation or parole, it did so because that statute did not require in-person reporting and registrants were “free to move where they wish and to live and work as other citizens, with no supervision.” Id. at 101. By contrast, SORA 2011 requires in-person reporting and limits where registrants can live and work. Plaintiffs must report significantly more information than while they were on probation or parole. Moreover, plaintiffs must report in person to law enforcement more frequently and for far longer than they reported to their probation/parole agents. Compl. ¶¶ 118126. Andrea Yang, Historical Criminal Punishments, Punitive Aims and Un-“Civil” PostCustody Sanctions on Sex Offenders, 75 U. Cinn. L. Rev. 1299, 1328 n.199 (2007) (supervision requirements for registrants may “exceed those of probationers and parolees”).
Second, the residency, occupational, and loitering restrictions are akin to banishment. Although extensively used in the ancient world, “today banishment is considered an archaic and even primitive form of punishment.” Beckett & Herbert, Banished: The New Social Control in Urban America (2010), at 10. See Smith, 538 U.S. at 98 (banishment is a traditional form of punishment). While neither the Supreme Court nor the Sixth Circuit has ever considered whether geographic exclusion zones are comparable to banishment, other federal and state courts have held they are. See e.g., Baker, 295 S.W.3d at 444 (geographic restrictions barring
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registrants “from residing in large areas of the community” akin to banishment); Whitaker v. Perdue, 4:06-cv-0140, at *19 (N.D. Georgia, 3/30/07) (unpub.) (Exh. 18). Here plaintiffs are not just barred from living and working in large portions of the state, but, as a result of the “loitering” restriction, are also at risk of prosecution for engaging in other normal activities – such as taking their children to a playground – within the exclusion zones. Compl. ¶¶ 275-77.
Finally, SORA 2011 resembles traditional shaming punishments. “What distinguishes a criminal from a civil sanction …, it is ventured, is the judgment of community condemnation which accompanies and justifies its imposition.” Henry Hart, The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401, 404 (1958). The public sex offender registry is a wall of shame, made accessible world-wide. Wallace, 905 N.E.2d at 380 (Internet registry similar to shaming).
In Smith, the majority rejected analogies to shaming punishments with respect to the Alaska statute, reasoning that the stigma of registration stemmed from the “dissemination of accurate information about a criminal record, most of which is already public.” Smith, 538 U.S. at 98. The majority emphasized that the public “must take the initial step” of visiting the website, comparing that to a visit to “an official archive of criminal records.” Id. at 99. By contrast, Michigan’s registry does not simply list official conviction information. It labels individuals by tier, thereby singling out some registrants as especially dangerous. Plaintiffs here are branded as Tier III offenders, a designation that falsely suggests that they are among the worst offenders. The state, by publicly labeling plaintiffs as Tier III registrants, directly contributes to lost employment, evictions, shunning, and other social and economic ostracism. See Compl. ¶¶ 208213; Levenson Report, at 6-7 (Exh. 9) (registrants subjected to widespread ostracism).
In addition, registry information is often inaccurate. The registry purports to provide
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information on “convicted sex offenders.” Public Sex Offender Registry Home Page.3 But some registrants were convicted of crimes that are not sex offenses; others had their cases dismissed before a final judgment was entered, and were never convicted. See Compl. ¶¶ 15-45 (Doe #1 and Doe #2); M.C.L. § 28.722(b). As to them – as the Ninth Circuit said of juveniles – public registration “cannot be compared to a visit to a criminal archive, as such a visit would yield no information about [the individual’s record].” Juvenile Male, 590 F.3d at 935. Michigan posts inaccurate, non-public criminal history, as well as extensive personal information that would be unavailable in a criminal archive. Exh. 1, at 5-6. Yet this information is available worldwide.
Unlike in Smith, today the public need not even visit the website, but can be contacted automatically by e-mail when a registrant moves into the neighborhood. See E-Mail Alert Subscription.4 Numerous web and phone applications provide instant access to registry information, even allowing users to be notified by text or e-mail when they come near a registrant. See, e.g. Locate-Safe (sends text alert near a registrant); Sex Offender Search (sends monthly reports of local registrants).5 Because SORA 2011 (1) stigmatizes plaintiffs as the worst category of sex offenders; (2) requires the recording of non-public (and sometimes inaccurate) criminal history data, as well as extensive personal information; and (3) broadcasts that data and information on the Internet, SORA registration today is more comparable to traditional shaming punishments than to a visit to a criminal records archive. 3. Kennedy Factor #3: SORA 2011 Typically Requires a Finding of Criminal Scienter.
Only individuals found guilty of a crime must register. In most cases this requires mens rea (though SORA 2011 also requires registration for age-only offenses without knowledge of
3 See http://www.mipsor.state.mi.us. 4 See http://www.mipsor.state.mi.us/Subscribe/AlertSubscription.aspx. 5 See Locate-Safe (http://itunes.apple.com/us/app/locatesafe/id421224446?mt=8) and Sex Offender Search (http://itunes.apple.com/us/app/sex-offender-search/id394721194?mt=8).
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the partner’s age). This weighs in favor of finding that the law imposes punishment. 4. Kennedy Factor #4: SORA 2011 Serves the Traditional Aims of Punishment.
Given the restraints on physical liberty and the stigma attached to registration, SORA 2011 clearly has a retributive effect, and thus serves the traditional aims of punishment. As the Kentucky Supreme Court explained in holding that a residency restriction violated the Ex Post Facto Clause, where a restriction is “imposed equally upon all offenders, with no consideration given to how dangerous any particular registrant may be to public safety, that restriction begins to look far more like retribution for past offenses than regulation intended to prevent future ones.” Baker, 295 S.W.3d at 439. SORA 2011 promotes the traditional aims of punishment because it “furthers retribution against sex offenders for their past crimes.” Id. at 445. 5. Kennedy Factor #5: SORA 2011 Applies Only to Behavior Which Is a Crime.
SORA 2011 is triggered exclusively by findings of criminal guilt. This factor, too, points towards a punitive intent. See Smith, 538 U.S. at 113 (Stevens, J., dissenting) (contrasting registration to civil commitment in Hendricks, which was upheld as non-punitive because it was “clear that a conviction standing alone did not make anyone eligible for the burden imposed”); Letalien, 985 A.2d at 22 (law invalidated because it applied exclusively to crimes, was not based on risk assessment, and could not be waived based on proof that registrant presented low risk). 6. Kennedy Factor #6: SORA 2011 Is Not Rationally Related to a Non-Punitive Interest.
The asserted purpose of Michigan’s SORA is to “prevent[] and protect[] against the commission of future criminal sexual acts by convicted sex offenders.” M.C.L. § 28.721a. The underlying assumption is that registration and the attendant restrictions will reduce recidivism and thereby reduce the risk to the public. In the complaint, plaintiffs allege that that assumption is incorrect, and that in fact registration actually undermines public safety. Compl. ¶¶ 235-271.
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Plaintiffs have offered empirical evidence from the top researchers in the field showing that public registries are likely to increase rather than decrease recidivism, and that sex offense rates in Michigan are as much as 10% higher than they would be without SORA 2011. Prescott Decl. at 1-4 (Exh. 8); Levenson Decl., at 3-6 (Exh. 9) While this may seem counter-intuitive, it reflects the fact that sex offender registration and its consequences exacerbate risk factors for recidivism, such as lack of employment and housing, and prevent healthy reintegration into the community. Compl. at ¶¶ 239-43; Prescott Decl. at 3-8 (Exh. 8); Levenson Decl., at 10 (Exh. 9). For purposes of this motion, the Court must accept these allegations as true.
The empirical research overwhelmingly shows that, at best, public registration makes no difference in recidivism rates, and that it is counter-productive to avowed public safety goals. Compl. ¶ 244; Amanda Y. Agan, Sex Offender Registries: Fear Without Function? (12/1/08), at SSRN: http://ssrn.com/abstract=1437098 (no decline in sex offense rates after introduction of registry nor does recidivism decrease in states with registries); Bob Vasquez, The Influence of Sex Offender Registration and Notification Laws in the United States, 54 Crime & Delinquency 175, 179, 188 (2008) (empirical research indicates that sex offender legislation seems to have no uniform/observable influence on the number of rapes reported).
Similarly, geographic exclusion zones are likely to increase rather than decrease sexual offending, and therefore are not rationally related to public safety goals. See Baker, 295 S.W.3d at 445 (residency restrictions have no rational connection to a non-punitive purpose since public safety is not enhanced “by a registrant not being allowed to sleep near a school at night, when children are not present, but being allowed to stay there during the day, when children are present”). Where registrants live is not a significant contributing factor to recidivism. Indeed, the contrary is true: offenders with stable housing and employment are less likely to commit new sex
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offenses than those who lack stability. See Compl. ¶¶ 246-48; Levenson Decl., at 3-6 (Exh. 8) (residency restrictions do not reduce sex crimes; rather housing instability is associated with increased recidivism); Prescott Decl., at 8 (Exh. 9) (laws that increase unemployment and housing instability can increase recidivism); Zandbergen, et al., Residential Proximity to Schools and Daycares: An Empirical Analysis of Sex Offense Recidivism, 37 Criminal Justice and Behavior 482 (2010) (finding no link between where a registrant lives and recidivism against minors); Blood, Watson, & Stageberg, Iowa Department of Criminal and Juvenile Justice Planning, State Legislation Monitoring Report (2008), at 3 (Exh. 19) (residency restriction did “not appear to have an effect on reducing the number of sex offenses with child victims”); Minnesota Department of Corrections, Residential Proximity and Sex Offense Recidivism in Minnesota (2007), at 4 (“Rather than lowering sexual recidivism, housing restrictions may work against this goal” by fostering conditions that hinder reintegration into society) (Exh. 20); Minn. Dep’t of Corr., Level Three Sex Offender Residential Placement Issues: 2003 Report to the Legislature 9 (2003) (“Enhanced safety due to proximity restrictions may be a comfort factor for the general public, but it does not have any basis in fact”).
Registration and residency schemes have become so counter-productive that victims’ organizations are questioning their use. As the National Alliance to End Sexual Violence explains, some measures intended to protect victims:
put communities at higher risk, while others create a false sense of security…. [O]ver-inclusive public notification can actually be harmful to public safety by diluting the ability to identify the most dangerous offenders and by disrupting the stability of low-risk offenders in ways that may increase their risk of re-offense…. A number of states and locales are considering residency restrictions in which sex offenders may not reside within a certain radius of schools, parks, skating rinks, certain neighborhoods, etc., and may not utilize resources such as group homes, homeless shelters and hurricane shelters. However, there is no evidence that these
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laws protect children…. Moreover, residency restrictions are having unintended consequences that decrease public safety.6 Law enforcement officials are also denouncing excessive restrictions as undermining public safety. See, e.g., Iowa County Attorneys Association, Statement on Sex Offender Residency Restrictions in Iowa (12/11/06) (“There is no demonstrated protective effect of the residency requirement that justifies the huge draining of scarce law enforcement resources in the effort to enforce the restriction.”) (Exh. 21); Misguided Measures, ABC News (3/7/07) (discussing opposition to residency restrictions by victims groups and law enforcement) (Exh. 22). Not only are SORA 2011’s registration requirements and geographic exclusion zones irrational because they undermine public safety, but the statute’s tier classifications, which determine the length of registration, are irrational because they do not correlate to recidivism risk. Compl. ¶¶ 252-71. Tier classifications that are offense-based (determined by the conviction alone) rather than risk-based (determined by risk assessments) inflate risk in many cases, while underestimating risk in others. Levenson Decl., at 2 (Exh. 9). Because SORA 2011 is an offensebased system, it “fail[s] to distinguish between registered offenders who present significant threats to public safety and those who present lower risk.” Id. Indeed, in many cases “lowertiered individuals had higher recidivism rates than those who were assigned into ostensibly higher-risk tiers.” Id. As a result, “the public’s and law enforcement’s ability to identify sexually dangerous persons is significantly diluted.” Id. (Michigan’s registry may be the second largest per capita in the country. See http://www.missingkids.com/en_US/ documents/sex-offendermap.pdf.) Moreover, lifetime registration is almost never warranted, because recidivism risk falls off sharply over time, both as registrants age and as more time passes since the offense. Id. at 10. Therefore, “[r]equiring registration for 25 years to life is…both inefficient and unnecessary.” Id.
6 National Alliance to End Sexual Violence, Community Management of Sex Offenders, available at http://naesv.org/?page_id=87.
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Finally, the rationality of SORA 2011 depends on the assumption that anyone convicted of a sex offense is and will remain dangerous. In fact, risk drops off significantly over time, and many registrants are at very low risk to reoffend from the outset. Compl. ¶¶ 254-56, 263-271. Imposing SORA 2011’s requirements on individuals who are unlikely to re-offend does not further the state’s avowed goals. Indeed, the Michigan Court of Appeals, in holding that registration was cruel or unusual punishment when imposed for teen sex, said that public safety goals are frustrated when the registry “‘needlessly captur[es] individuals who do not pose a danger to the public, and who do not pose a danger of reoffending.’” People v. Dipiazza, 778 N.W.2d 264, 270 (Mich. App. 2009) (citing House Leg. Analysis, HB 4920, 5195, 5240).
In sum, SORA 2011 is not rationally related to the asserted goal of public safety. 7. Kennedy Factor #7: SORA 2011 Is Excessive in Relation to Non-Punitive Interests.
Even assuming for the sake of argument that SORA 2011 is rationally related to public safety, the statute is unconstitutionally excessive in relation to those goals. The statute requires extensive in-person reporting; banishes registrants from large portions of the state; requires advance notice for travel; and mandates lifetime monitoring – all without any opportunity for removal from the registry, even in the face of years of model citizenship and clinical assessments that all but rule out any risk of re-offending. Despite the complete lack of evidence that these restrictions reduce recidivism, they are applied to anyone convicted of a listed offense, including those who pose no threat to public safety. See Compl. ¶¶ 249-50; Levenson Decl, at 10-12 (Exh. 9) (frequent check-ins or expansive reporting requirements do not reduce recidivism; failure to comply with registration requirements does not predict sexual recidivism).
The excessiveness of laws similar to SORA 2011 has increasingly led courts to conclude that such laws are unconstitutional. For example, the Indiana Supreme Court held that the
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registry statute violated the state Ex Post Facto Clause because the avowed public safety goals did not “render as non-punitive a statute that is so broad and sweeping,” especially given that the statute applied “without regard to whether the individual poses any particular future risk,” and given that there was no mechanism for a registrant to seek relief “even on the clearest showing of rehabilitation.” Wallace, 905 N.E.2d at 384. Similarly, the Kentucky Supreme Court held: “[g]iven the drastic consequences of Kentucky’s residency restrictions, and the fact that there is no individual determination of the threat a particular registrant poses to public safety, we can only conclude that [the law] is excessive with respect to the non-punitive purpose of public safety.” Baker, 295 S.W.3d at 446. See Pollard, 908 N.E.2d at 1153 (by “[r]estricting the residence of offenders based on conduct that may have nothing to do with their crimes against children, and without considering whether a particular offender is a danger to the general public, the statute exceeds its non-punitive purpose”); Whitaker, 4:06-cv-0140, at *21 (Exh. 18) (“Act’s failure to distinguish among sex offenders and failure to identify those … who are most likely to re-offend, when coupled with the fact that the [housing] instability created by the Act may be harmful to the public, could support a finding that the Act is excessive”).
In sum, plaintiffs have alleged facts that show that SORA 2011 is punitive. Indeed, while Kennedy only requires a balancing of the factors, all seven of the Kennedy factors point towards punitiveness. Plaintiffs should therefore be allowed to proceed with their ex post facto claim. II. SORA 2011 RESTRICTS FUNDAMENTAL RIGHTS AND IS THEREFORE
SUBJECT TO STRICT SCRUTINY. SORA 2011 both compels and restricts conduct across a broad spectrum of activity. While some of these obligations and restrictions do not implicate fundamental rights, others curtail rights that are “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U.S. 702, 721 (1997), including the rights to travel, to engage in the common
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occupations of life, to direct the education and upbringing of children, and to freedom of speech. To the extent that a law affects registrants’ fundamental rights, it is invalid unless “narrowly tailored to serve a compelling state interest.” Id. A. SORA 2011 Unconstitutionally Interferes with Plaintiffs’ Right to Travel.
“[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution.” U.S. v. Guest, 383 U.S. 745, 747 (1966). Citizens “possess[] the fundamental right, inherent in citizens of all free governments, to peacefully dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom.” U.S. v. Wheeler, 254 U.S. 281, 293 (1920). “[T]he right to remove from one place to another according to inclination, is an attribute of…liberty…secured by the Fourteenth Amendment and by other provisions of the Constitution.” Williams v. Fears, 179 U.S. 270, 274 (1900). See Johnson v. Cincinnati, 310 F.3d 484 (6th Cir. 2003) (local travel).
Restrictions on travel are subject to strict scrutiny. In Johnson, 310 F.3d 484, the Sixth Circuit held that an ordinance barring people convicted of drug crimes from “drug exclusion zones” could not survive that test. While the city had a compelling interest in combating drug crime, the ordinance was not narrowly tailored. Id. at 503. Instead of providing for:
neutral, individualized adjudication, the Ordinance relies on only general evidence that individuals arrested and/or convicted for drug activity…typically return to the neighborhood and repeat their offenses. While we credit this general evidence, it is insufficient to override an individual's interest in localized travel…. [W]e find that due process [] demands some individualized consideration before an individual’s right to localized travel can be restricted. Id. at 503-504. Here, as in Johnson, plaintiffs’ travel has been sharply restricted “without any particularized finding that a person is likely to engage in recidivist [] activity.” Id. at 503. Plaintiffs have alleged that SORA 2011 unconstitutionally interferes with their right to travel in multiple ways. Compl. ¶¶ 186-201. A person who “intends to temporarily reside at any
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place other than his or her residence for more than 7 days” must report in person within three days (21 days for foreign travel), and must state where he or she will stay, and for how long. M.C.L. §§ 28.725(1)(e), (7); 28.728(1)(e). A person may not change travel plans once those plans are reported. M.C.L. § 28.728(1)(e).
In addition, plaintiffs can never take a trip during the first 15 days of January, April, July, and October (their required reporting periods), even if it were to obtain medical treatment or attend to a dying relative in another city. M.C.L. § 28.725a(3). A registrant who plans a trip to return within the specified period, but who faces weather delays or a car accident, has committed a crime. The obligation to report all manner of changes in person within three days poses a further impediment, since if any such change occurs while traveling, the individual needs to return immediately to the registration jurisdiction to report. M.C.L. § 28.725(1). The extreme complexity of registration laws makes lawful out-of-state travel nearly impossible. Registrants must determine what length of stay triggers registration and what obligations are imposed in the other state, a task that is complicated given both the lack of centralized information and the fact that sex offender laws often prohibit ordinary behavior (like visiting a library or park).
Finally, the prohibition on “loitering” within 1000 feet of a school affects freedom of movement. M.C.L. § 28.734(1)(b). Registrants must be continually aware of whether they are within 1000 feet of school property lines, lest they be accused of engaging in any activity that might constitute “loitering” under the statute. B. SORA 2011 Unconstitutionally Interferes with Plaintiffs’ Right to Engage in the
Common Occupations of Life. “Without doubt,” the Constitution protects the “right of the individual…to engage in any of the common occupations of life.” Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Whether one can practice one’s profession is “not a matter of grace and favor,” Willner v. Comm. on
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Character and Fitness, 373 U.S. 96, 102 (1963), since “the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity” secured by the Fourteenth Amendment. Truax v. Raich, 239 U.S. 33, 42-43 (1915). A person’s liberty is implicated by the denial of the right “to follow any lawful calling, business, or profession he may choose;” that right “cannot be arbitrarily taken…, any more than [] real or personal property can be thus taken.” Dent v. West Virginia, 129 U.S. 114, 121-22 (1889).
To be constitutional, regulations on employment must be related to “the applicant’s fitness or capacity to practice” the profession. Schware v. Board of Bar Examiners, 353 U.S. 232, 239 (1957). Restrictions based on criminal history should take into account the nature and age of the offense. Id. at 241-43. While setting standards for entry into particular occupations is permissible, “broadly denying … substantial opportunities for employment” is not. Hampton v. Mow Sun Wong, 426 U.S. 88, 116 (1976). Thus in Hampton, the Court invalidated regulations that barred non-citizens from most federal jobs, finding that such “ineligibility for employment in a major sector of the economy … deprives a discrete class of persons of an interest in liberty on a wholesale basis.” Id. at 102.
Plaintiffs have alleged that SORA 2011 imposes just such a wholesale barrier to employment. First, the law makes it a crime for registrants to work within 1000 feet of a school. M.C.L. § 28.734(1)(a). Plaintiffs have alleged that the exclusion zones severely restrict access to employment. Compl. at ¶¶ 164, 176; Wagner Decl., at 10, 13 (Exh. 11). Second, because SORA 2011 stigmatizes all registrants as dangerous, few employers are willing to hire them, and the plaintiffs have repeatedly lost jobs after employers learned they were on the registry. See Compl. at ¶¶ 163, 169-75; Levenson Decl., at 6-7 (Exh. 9). Finally, SORA 2011 penalizes employers who hire registrants, by requiring public posting of employer addresses. M.C.L. § 28.728(2)(d).
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The scope of SORA 2011’s wholesale infringement on the right to seek employment comes into sharp relief when contrasted with permissible occupational restrictions on parolees or probationers, who are still serving sentences. In the federal system, for example, courts may impose occupational restrictions, but such restrictions must “bear[] a reasonably direct relationship to the conduct constituting the offense.” 18 U.S.C. § 3563(b)(5)(2).
By contrast, plaintiffs here are barred for life from most employment in large geographic areas, regardless of whether their convictions are relevant to the job (or to any risk they might pose to co-workers or the public). Through a combination of geographic exclusion, public stigmatization, and employer disincentives, SORA 2011 severely affects plaintiffs’ fundamental right to engage in the common occupations of life. Such sweeping occupational exclusions are not tailored to the state’s asserted public safety interests. There is no evidence that geographic restrictions or publication of employer information protects the public. Levenson Decl., at 4 (Exh. 9). Rather, the evidence shows that unemployment increases recidivism, thereby undercutting the state’s public safety goals. Id. at 7 (Exh. 9); Prescott Decl., at 8 (Exh. 8). C. SORA 2011 Unconstitutionally Interferes with Plaintiffs’ Right to Direct the
Education and Upbringing of their Children. “[T]he fundamental right of parents to make decisions concerning the care, custody, and control of their children” is “perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). The education and upbringing of children are “among the associational rights this Court has ranked as of basic importance in our society, rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996). Parents have a right not just to be involved in their children’s lives, but to “to make decisions concerning the care, custody, and control of their children.” Troxel, 530 U.S. at 66.
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SORA 2011 severely curtails plaintiffs’ upbringing and education of their children. Compl. at ¶¶ 127-41 (plaintiffs barred from attending graduations, school plays, sports events, parent/teacher conferences, etc. ). This curtailment of parental rights arises principally from the statute’s prohibition on “loitering” within 1000 feet of a school. M.C.L. § 28.734(1)(b). The state has interpreted the law to bar parents from observing their own children in the very activities that are central to their children’s lives. Attorney General Letter (7/14/06) (Exh. 14). The statute also appears to make it a crime for parents to take their children to a playground or park that happens to be located within 1000 feet of a school. Compl. at ¶ 133. Because SORA 2011 contains no exemptions for parent/child relationships, it impermissibly burdens core parental activities.
Restrictions on family relationships must be narrowly tailored. The Sixth Circuit has struck down similar restrictions, holding that a drug exclusion zone unconstitutionally prevented a grandmother from caring for her grandchildren. Johnson, 310 F.3d at 506. The challenged ordinance “plainly infringed” on the grandmother’s rights, even though it did not directly target family relationships, because it did not provide for “individualized consideration.” Id. at 505-06. As a New Jersey court has said, in holding that that state’s “loitering” law violated due process:
The geographical restrictions on where the plaintiff … [may] “loiter,” substantially intrude[s] upon significant family matters involving private and personal choices about how to raise and care for children, and decision-making about where to reside [by restricting] … a low risk offender, from accompanying his children to the school bus stop, going into a school or to a public park with his children, for fear of being charged with “loitering.” Elwell, supra, 2006 WL 3797974, at 15 (Exh. 17). D. SORA 2011 Unconstitutionally Interferes with Plaintiffs’ Right to Free Speech. The First Amendment protects both the right to speak freely and the right to receive information. Stanley v. Georgia, 394 U.S. 557, 564 (1969). The First Amendment applies fully to the Internet, which provides “low-cost capacity for communication of all kinds” and is a vital
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forum for free speech and information-gathering. Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997). SORA 2011 restricts plaintiffs’ ability to use the Internet because it requires them to report in person within three days whenever they establish any new Internet identifier. M.C.L. §§ 28.725(1)(f); 28.727(1)(i)). Registrants who post comments on a news site, establish an ECF account, or review products on Amazon, must immediately report in person.
People do not lose their First Amendment rights just because they are listed as sex offenders. Rather the question is whether SORA 2011’s restrictions are narrowly tailored. See Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973) (laws that “restrict or burden the exercise of First Amendment rights must be narrowly drawn”); Doe v. City of Albuquerque, 667 F.3d 111 (10th Cir. 2012) (ban on sex offenders using libraries not narrowly tailored); Doe v. Jindal, _ F.Supp.2d _, 2012 WL 540100 (M.D. Louis. 2012) (ban on sex offenders using social networking sites was overbroad). While the state has an interest in preventing illegal on-line sexual communication, SORA 2011 is not narrowly tailored to that goal. The law does not focus on Internet communications that pose a potential danger, but encompasses all Internet speech. And the law unnecessarily requires in person reporting of changes to electronic information. III. RETROACTIVE APPLICATION OF SORA 2011 VIOLATES DUE PROCESS.
Retroactive sanctions tied to prior convictions are most commonly evaluated under the Ex Post Facto Clause, which applies to penal legislation. The Due Process Clause, which governs civil as well as criminal laws, “also protects the interests in fair notice and repose that may be compromised by retroactive legislation; a justification sufficient to validate a statute’s prospective application under the Clause may not suffice to warrant its retroactive application.” Landgraf v. USI Film Products, 511 U.S. 244, 266 (1994) (citation omitted). Thus, even if this Court were to conclude that SORA 2011 does not violate the Ex Post Facto Clause, it must also
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consider whether retroactive application of the law violates due process. Three aspects of SORA 2011 best demonstrate the due process problems presented by the statute: (a) the application of SORA 2011 to Doe #1 whose conviction for a non-sexual offense predated the creation of the registry; (b) the application of SORA 2011 to Doe #2 whose plea agreement included a promise of privacy; and (c) the retroactive extension of all plaintiffs’ registration from 25 years to life.
As the Supreme Court explained in Landgraf, 511 U.S. at 266: [R]etroactive statutes raise particular concerns. The Legislature’s unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals. While retrospective civil legislation is generally permissible, the Due Process Clause limits retroactive civil legislation if “the consequences are particularly harsh and oppressive.” U.S. Trust Co. of New York v. New Jersey, 431 U.S. 1, 45 n.13 (1977) (quotation marks omitted). “Courts are concerned about notice, foreseeability, and fair warning because it is expected that … statutes affect the behavior of the public. Thus, the public must be able to adequately inform itself of a law … before acting.” U.S. v. Barton, 455 F.3d 649, 654-55 (6th Cir. 2006). I.N.S. v. St. Cyr, 533 U.S. 289 (2001), provides a useful framework. There the Court held that changes to an immigration law, which barred discretionary relief for individuals convicted of certain crimes, could not be retroactively applied. “Plea agreements involve a quid pro quo between a criminal defendant and the government.” Id. at 323. Since defendants “rely[] upon settled practice, the advice of counsel, and perhaps even the assurance in open court” regarding the potential immigration consequences of a plea, the “potential for unfairness in the retroactive application of [the statute] … is significant and manifest.” Id. Once plea agreements are made, “it would surely be contrary to familiar considerations of fair notice, reasonable reliance, and
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settled expectations” to impose more severe conviction-based immigration consequences than those considered by the defendant at the time of the plea. Id. (citation omitted.)
Sex offender registration, like deportation, is a “severe penalty” that is “intimately related to the criminal process.” Padilla v. Kentucky, 130 S.Ct. 1473, 1481 (2010). “[F]undamental fairness means that the courts will enforce promises made during the plea bargaining process that induce a criminal defendant to waive his constitutional rights and plead guilty.” U.S. v. Barnes, 278 F.3d 644, 648 (2002). SORA 2011 violates fair notice, reasonable reliance and settled expectations by retroactively altering the basic consequences of plaintiffs’ plea agreements.
In People v. Cole, __N.W.2d__ (Mich., May 25, 2012), the Michigan Supreme Court just held that it violated due process to impose lifetime electronic monitoring on a sex offender who was not aware of that sanction at the time of the plea. Because monitoring is a mandatory consequence of the plea, due process requires knowledge of that consequence at the time of the plea. Here too, the plaintiffs – who allege that sex offender registration issues are pivotal in plea negotiations – lacked “the critical information necessary to assess the bargain being considered” at the time of their pleas. Id. at *12. See Compl. ¶¶ 278-81; Yantus Decl., ¶ 7 (Exh. 12).
Doe #1 was convicted of robbing a McDonalds in 1990, long before the registry was established. Because he threatened a 12-year-old boy, he was also convicted of kidnapping. That offense now requires lifetime registration, even though there was no sexual element to the crime. Compl. ¶¶ 15-28. Because the registry did not even exist when Doe #1 pled, he did not have “fair notice” of the lifetime consequences of his plea.
Doe #2 pled guilty in 1997 under the Holmes Youthful Trainee Act (HYTA), a diversionary statute that allows youth who successfully complete probation to have their cases dismissed and sealed without any conviction ever being entered. M.C.L. §762.11, et. seq.;
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Compl. ¶¶ 29-45. HYTA provides that “all proceedings … shall be closed to public inspection” and the individual shall “not suffer a civil disability or loss of right or privilege.” M.C.L. §762.14. When Doe #2 pled guilty, he did so based on the promise that his record would be sealed. The state has violated the basis of the plea.
Defendants argue that under Doe v. Michigan Dept. of State Police, 490 F.3d 491, 501 (6th Cir. 2007), SORA’s publication requirement supersedes HYTA’s privacy promise (though the court noted this was “a close question because the sex-offender registry in fact discloses information about the plaintiffs that is not entirely accurate”). But Doe did not, as here, consider a situation where a HYTA plea was made at a time when SORA itself was only available to law enforcement. Mich. Pub. Act 295, Sec. 10 (1994). Unlike in Doe, this is not a case of reconciling competing statutory imperatives in effect at the time of the plea, but rather a case where the terms of the plea agreement itself (privacy under both HYTA and SORA) have been violated.
Finally, SORA 2011 has retroactively extended the registration periods of all plaintiffs from 25 years to life. Even if this Court were to find that generally changes to registration conditions do not rise to the level of a Due Process violation, drastically changing the length of registration from 25 years to life without any individualized showing of dangerousness is “harsh and oppressive,” and violates due process. U.S. Trust Co., 431 U.S. at 45 n.13. IV. MANY PROVISIONS OF SORA 2011 ARE VOID FOR VAGUENESS, ARE
IMPOSSIBLE TO COMPLY WITH, AND WRONGLY IMPOSE STRICT LIABILITY. [A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. Connally v. General Const. Co., 269 U.S. 385, 391 (1926). A law is void for vagueness “if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Thus, a statute must (1) be clear enough to provide a person of ordinary intelligence notice of
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what conduct is prohibited, and (2) provide standards for those who enforce its prohibitions. Id. The level of specificity required also depends on the subject: “if a statute is so nonspecific as to create uncertainty regarding the exercise of a constitutionally protected right…a higher degree of clarity is required.” Planned Parenthood v. Farmer, 220 F.3d 127, 135 (3rd Cir. 2000). Because SORA 2011 restricts fundamental rights while conditioning liability on “confusing and ambiguous criteria” which present “serious problems of notice, discriminatory application, and [a] chilling effect on the exercise of constitutional rights,” it is unconstitutional. Id. at 135.
Many provisions of SORA 2011 are unclear. An individual must report within three days whenever he “begins to regularly operate any vehicle,” but the statute offers no guidance on how often a person can borrow a car before reporting M.C.L. § 28.725(g). Registrants are prohibited from residing, working, or loitering within a “student safety zone,” defined as 1,000 feet or less from school property. M.C.L. § 28.733(e). But plaintiffs allege that “[i]t is extremely difficult if not impossible to identify the areas that are inside and outside the exclusion zones, even with sophisticated mapping technology.” Wagner Decl. at 3 (Exh. 11). Since parcel boundary data (which is not available) is required for mapping, registrants “would not be able to determine the boundaries of the prohibited areas even if they had the required time, expertise and tools to map the exclusion zone.” Id. at 5. Moreover, the statute does not explain from what point to what point the 1,000 feet are measured, thereby placing unfettered discretion in the hands of police to determine whether, for example, a registrant may live in a farmhouse located 5,000 feet from a school, if the farm’s fields abut school property. The statute “not only fails to give specific notice…but also fails to provide an objective standard” that authorities can consistently apply. Cunney v. Bd. of Trs., 660 F.3d 612, 621 (2nd Cir. 2011) (zoning law void for vagueness as it specified height measurement but did not describe elevation from which height was measured).
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Some of the most basic terms in the statute, such as the undefined term “reside”, are hopelessly unclear. See Poe v. Snyder, _ F. Supp. 2d __, 2011 WL 6781361 (W.D. Mich. 2011) (homeless registrants sought clarification of the meaning of the word “reside” after registrant froze to death for lack of access to shelter located within 1,000 feet of school). The prohibition on “loitering” within a student safety zone is also problematic, despite a statutory definition: “‘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.” M.C.L. § 28.733(b). But does that definition encompass the uncle playing catch with a nephew who lives within 1,000 feet of a school, or the grandparent who attends Thanksgiving dinner at that same home? Moreover, since the term “minor” has been interpreted to include a person’s own children, must parents – who are necessarily observing their children – determine at all times if they are within 1,000 feet of a school? This is impossible as a practical matter.
This vagueness is exacerbated by the fact that strict liability applies to many violations. M.C.L. §§ 28.729(2); 28.734(2); 28.735(2). (Defendants incorrectly claim SORA 2011 punishes only willful infractions. Motion to Dismiss, at 21 (Dkt. 14).) The law imposes complex requirements, yet punishes even inadvertent noncompliance. Such strict liability is disfavored where there is no criminal intent. Morissette v. U.S., 342 U.S. 246, 255 (1952). In Lambert v. California, 355 U.S. 225 (1957), the Court decided this precise issue, finding that a law requiring felons to register violated due process. The law “‘punished conduct which would not be blameworthy in the average member of the community,’” and therefore the defendant could not be held strictly liable. Id. at 229 (quoting Holmes, The Common Law, at 50). Strict liability is “constitutionally suspect” when conduct that is “commonly and ordinarily not criminal” results in a criminal violation. U.S. v. Apollo Energies, Inc., 611 F.3d 679, 687 (10th Cir. 2010). While
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strict liability is allowable in regulating activities that people would ordinarily expect to be regulated (such as handling explosives), it is not constitutionally permissible for regulating activities that are not commonly criminalized (such as taking one’s children to school or failing to report one’s new email address). Yet those are strict liability crimes. Thus, even if violations of SORA 2011 are not vague, the imposition of strict liability still renders them unconstitutional.
Most troubling of all is that SORA 2011 combines strict liability with impossibility. For example, failure to maintain a driver’s license with a current address is a strict liability offense. M.C.L. §§ 28.725a(7); 28.729(2). Yet Mr. Doe #4 has been unable to comply with the driver’s license provisions because SORA 2011 rendered him homeless, and he is unable to update his license without an address. Compl. ¶ 227. Similarly, SORA 2011 imposes strict liability for nonreporting. M.C.L. §§ 28.725a(3); 28.729(2). If an illness, injury, or emergency makes compliance impossible, plaintiffs are still strictly liable for failing to report. Compl. ¶ 226. V. THE COURT CAN AND SHOULD ASSERT SUPPLEMENTAL JURISDICTION
OVER PLAINTIFFS’ HEADLEE CLAIM. A federal court “shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy.” 28 U.S.C. § 1367(a) (emphasis added). In light of the mandatory term “shall,” the Sixth Circuit has stated “if there is some basis for original jurisdiction, the default assumption is that the court will exercise supplemental jurisdiction over all related claims.” Campanella v. Commerce Exch. Bank, 137 F.3d 885, 892 (6th Cir. 1998). A court may decline to exercise supplemental jurisdiction only if one of the four exceptions in 28 U.S.C. § 1367(c) applies. Veneklase v. Bridgewater Condos, L.C., 670 F.3d 705, 716 (6th Cir. 2012). Defendants argue that the Headlee claims do not arise from a “common nucleus of operative fact.” Gibbs v. United Mine Workers, 383 U.S. 715, 725 (1966). If that were true, then
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the Court would not have jurisdiction at all. The Gibbs test does not require identical facts between the federal and state claims. Rather, the question is whether “if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding.” Id. In other words, since this litigation, if brought in state court, would be one case, the federal court has supplemental jurisdiction.
Defendants argue for application of the exceptions under § 1367(c)(1) and (c)(4). Contrary to defendants’ claims, plaintiffs do not seek an appropriation of state funds. Compl. ¶334(f). The remedy for a Headlee violation is declaratory or injunctive relief, not an order for appropriations. Wayne County Chief Exec. v. Governor, 583 N.W.2d 512, 517 (Mich. App. 1998). In exercising its discretion, the Court must look to “considerations of judicial economy, convenience and fairness to the litigants.” Gibbs, 383 U.S. at 726. Even assuming one of the exceptions applies, the Court should exercise jurisdiction because parallel litigation is wasteful.
Plaintiffs specifically allege that SORA 2011 imposes extensive new obligations on local law enforcement, and that any minimal additional revenue obtained through fees is far below the actual costs. Compl. ¶¶ 286-93. It is absolutely clear that “[c]ollecting ‘a large amount of data’ or ‘much more detailed information’ than was previously required constitutes an increase in the level of an activity” under Headlee. Adair v. State, 785 N.W.2d 119, 127 (Mich. App. 2010). Owczarek v. Michigan, 742 N.W.2d 380 (Mich. App. 2007), is inapposite, because there the statute did not impose new obligations on local government, but rather on local employees.
CONCLUSION Accepting the plaintiffs’ allegations as true, as the Court must at this stage of the litigation, SORA 2011 is so punitive, irrational, and overbroad, that it is unconstitutional. Defendants’ Motion to Dismiss should be denied.
35

2:12-cv-11194-RHC-DRG Doc # 21 Filed 05/25/12 Pg 45 of 47 Pg ID 530

Respectfully submitted,
Miriam J. Aukerman American Civil Liberties Union
Fund of Michigan Attorneys for Plaintiffs 89 Ionia Avenue NW Grand Rapids, MI 49503 (616) 301-0930
s/ Miriam J. Aukerman maukerman@aclu.org (P63165)
Michael J. Steinberg Kary L. Moss American Civil Liberties Union
Fund of Michigan Attorneys for Plaintiffs 60 West Hancock St. Detroit, MI 48201 (313) 578-6800 ext. 814
s/ Michael J. Steinberg msteinberg@aclumich.org (P43085)
s/ Kary L. Moss kmoss@aclumich.org (P49759)
Dated: May 25, 2012

William W. Swor Attorney for Plaintiffs 645 Griswold Street, Ste. 3060 Detroit, MI 48226 (313) 967-0200
s/ William W. Swor wwswor@wwnet.net (P21215)
Paul D. Reingold Michigan Clinical Law Program Attorneys for Plaintiffs 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109 (734) 763-4319
s/ Paul D. Reingold pdr@umich.edu (P27594)

36

2:12-cv-11194-RHC-DRG Doc # 21 Filed 05/25/12 Pg 46 of 47 Pg ID 531
INDEX OF EXHIBITS7 1. Obligations, Disabilities, and Restraints Imposed by SORA 2011 2. Declaration of John Doe #1 3. Declaration of John Doe #2 4. Declaration of John Doe #3 5. Declaration of John Doe #4 6. Declaration of Mary Doe 7. Declaration of I.G. 8. Declaration of Dr. James J. Prescott, J.D., Ph.D., on SORA Effects 9. Declaration of Dr. Jill Levenson, Ph.D., on SORA Studies and Effects 10. Declaration of Dr. Janet Fay-Dumaine, Psy. D., on the Plaintiffs’ Risk Level 11. Declaration of Peter Wagner, J.D., on the Impact of Exclusion Zones 12. Declaration of Anne Yantus, J.D., on the Impact of Registration on Plea Bargaining 13. Texas Association of Counties Report on Costs to Local Governments of Implementing the
Adam Walsh Act 14. Attorney General Letter (July 14, 2006) 15. MIRS Reports 16. Mikaloff v. Walsh, 2007 WL 2572268 (N.D. Ohio 2007) 17. Elwell v. Township of Lower, 2006 WL 3797974 (N.J. Super. Ct. 2006) 18. Whitaker v. Perdue, 4:06-cv-0140, Order (N.D. Georgia, March 30, 2007) 19. Blood, Watson, & Stageberg, Iowa Department of Criminal and Juvenile Justice Planning,
State Legislation Monitoring Report (2008) 20. Minnesota Department of Corrections, Residential Proximity and Sex Offense Recidivism in
Minnesota (2007) 21. Iowa County Attorneys Association, Statement on Sex Offender Residency Restrictions in
Iowa (Dec. 11, 2006) 22. Misguided Measures, ABC News (March 7, 2007)
7 Exhibits 1-13 were attached to the Complaint, and are not resubmitted here.
37

2:12-cv-11194-RHC-DRG Doc # 21 Filed 05/25/12 Pg 47 of 47 Pg ID 532 Certificate of Service
This document was filed using the Court’s ECF system, which provides same-day e-mail service to all counsel of record.
/s/ Miriam Aukerman maukerman@aclumich.org – P63165
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EXHIBIT 16
Mikaloff v. Walsh, 2007 WL 2572268 (N.D. Ohio 2007)

  

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Not Reported in F.Supp.2d, 2007 WL 2572268 (N.D.Ohio) (C ite as: 2007 W L 2572268 (N.D. O hio))

Page 1

Only the Westlaw citation is currently available.
United States District Court, N.D. Ohio.
Lane MIKALOFF, Plaintiff, v.
Sherri Bevan WALSH, etc., et al., Defendants.
No. 5:06-CV-96. Sept. 4, 2007.
David A. Singleton, Stephen A. Johnsongrove, Cincinnati, OH, for Plaintiff.
Susan Baker Ross, Office of the Prosecuting Attorney, Akron, OH, Jeffery W. Clark, Richard N. Coglianese, Frank M. Strigari, Office of the Attorney General, Columbus, OH, Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW GRANTING JUDGMENT FOR PLAINTIFF JAMES S. GWIN, United States District Judge.
*1 On January 17, 2006, Plaintiff Lane Mikaloff sued Defendant Sherri Bevan Walsh, Summit County Prosecutor and Defendant Douglas J. Powley, Akron Chief City Prosecutor, in their official capacities under 42 U.S.C. § 1983. With this Section 1983 action, Mikaloff seeks to enjoin enforcement against himself of Ohio Revised Code Section 2950.34,FN1 a law that prohibits sex offenders from residing within 1,000 feet of a school. In support of this action, Mikaloff says Section 2950.34 is unconstitutional as an ex post facto law if applied against him. This Court concludes that the residency restriction is an unconstitutional ex post facto law, enters judgment against the defendant, and enjoins the defendant from enforcing the law as against Mikaloff.
FN1. Ohio's residency restriction was recodified from 2950.031 to 2950.037 subsequent to trial. 2007 Ohio SB 10. The Court will refer to the restriction at its

present place in the code. The recodification within the same Chapter of the Code does not change the Court's analysis.
I. Standing As an initial matter,  n seeking declaratory or injunctive relief, the plaintiff must demonstrate actual present harm or a significant possibility of future harm to justify pre-enforcement 
 Peoples Rights Org. v. City of Columbus, 152 F.3d 522, 527 (6th Cir.). That said, n individual does not have to await the consummation of threatened injury to obtain preventive relief. Rather, if the injury is certainly impending, that is sufficient.Id. citing Babbitt v. United F arm Workers Union, 442 U.S. 289, 298 (1979). Typically, Courts engage in pre-enforcement review under the Declaratory Judgment Act when a statute imposes costly, selfexecuting compliance burdens. Nat'l Rifle Ass'n of Am. v. Magaw, 132 F.3d 272, 284 (6th Cir.1997). A case is ripe for review 
y if the probability of the future event occurring is substantial and of t immediacy and reality to warrant the issuance of a declaratory judgment.Nat'l Rifle Ass'n of Am. v. Magaw, 132 F.3d 272, 284 (6th Cir.1997).
The Court finds this is a case or controversy within the meaning of Article III. While Defendant has filed no action against Plaintiff, Defendant Walsh has indicated she awaits the outcome of this litigation before she will begin enforcement of O.R.C. § 2950.034 against Plaintiff Mikaloff. He has received a letter stating the Defendant will bring an injunction action against him if he does not move. Plaintiff's injury, therefore, is 
  impendingand of t immediacy and reality to warrant the issuance of a declaratory judgment.See Peoples Rights Org., 152 F.3d at 527; NRA of Am. v. Magaw, 132 F.3d at 284.
II. Findings Of Fact This case stems from Ohio's imposition of residency restrictions on Mikaloff after he was sen-

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Not Reported in F.Supp.2d, 2007 WL 2572268 (N.D.Ohio)

(C ite as: 2007 W L 2572268 (N.D. O hio))         
  

tenced and completed that sentence. In January

In December 2005, the Summit County Sheriff

1987, Plaintiff Mikaloff pled guilty to three counts

sent Mikaloff a letter telling Mikaloff that his resid-

of rape, five counts of aggravated burglary four

ence was within 1000 feet of McBright Elementary

counts of aggravated robbery, one count of robbery,

School and requiring Plaintiff to move by January

and one count of felonious assault. [Tr. 67, 18]. The

1, 2006. [Tr. 35]. Otherwise, the Sheriff would seek

convictions resulted from a series of burglaries that

an order forcing Mikaloff to move. Id. Because of

Mikaloff committed with co-defendants in October

his limited financial resources, Plaintiff Mikaloff

1986 and at a time that he was about 18 years old.

likely would be unable to rent another residence

[Tr. 18]. Regarding the rape convictions, Mikaloff

and would be separated from his partner and chil-

raped an adult woman during a burglary he commit-

dren if he is ordered to leave his home. [Tr. 41].

ted near October 1986. Arrested shortly after the rape, Mikaloff pled guilty and received a sentence of 16-53 years for the rape and related offenses. [Tr. 20]. At the time he pled guilty, Mikaloff was not informed that the rape conviction would foreclose him from residing at his family home. Nothing in the sentencing entry said anything regarding limitations upon where Mikaloff could reside.   
*2 On November 1, 2002, and after having

   Section 2950.031, which became effective on
July 31, 2003, prohibits sex offenders, like Mikaloff from residing within 1000 feet of school premises. After an amendment that became effective April 29, 2005, prosecutors can seek injunctive relief to require sex offenders to leave their homes within 1000 feet of schools. The Ohio General Assembly has recodified former Section 2950.031 as O.R.C. § 2950.034. Section 2950.034, thus, became

been incarcerated for about 16 years, Ohio paroled

effective long after Mikaloff's 1987 conviction.

Mikaloff to his family home at 1174 1/2 Beardsley Street, Akron, Ohio. [Tr. 29-30]. Mikaloff successfully completed parole in December 2004. [Tr. 33]. Plaintiff lives in a guest house on the back of the property. [Tr. 14]. The house has two small bedrooms, a kitchen dining area, and a bathroom.   
Plaintiff Mikaloff's mother owns the property and she allows Mikaloff, his life-partner, Mary Moffit, and their two children to live at the Beardsley Street residence rent-free. [Tr. 14, 36]. Mikaloff's family has owned the home for more than half a century. [Tr. 15]. Apparently because of smaller size of 1174 1/2 Beardsley, Moffit and the children often sleep in the main house at 1174 Beardsley, but Plaintiff Mikaloff sleeps in the smaller guest house. [Tr. 17].   
Plaintiff Mikaloff and his family face a difficult financial situation. Because of his past convictions, Mikaloff Plaintiff faces difficulty obtaining work. [Tr. 39, 59-61]. Plaintiff Mikaloff hopes to start a painting business but has not found the capital for start-up costs. [Tr. 39-40, 61].

   B. The Ohio Law
Ohio Revised Code § 2950.034 provides:
  
(A) No person who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to a sexually oriented offense or a child-victim oriented offense shall establish a residence or occupy residential premises within one thousand feet of any school premises or preschool or child day-care center premises.    (B) If a person to whom division (A) of this section applies violates division (A) of this section by establishing a residence or occupying residential premises within one thousand feet of any school premises or preschool or child day-care center premises, an owner or lessee of real property that is located within one thousand feet of those school premises or preschool or child daycare center premises, or the prosecuting attorney, village solicitor, city or township director of law, similar chief legal officer of a municipal corporation or township, or official designated as a prosecutor in a municipal corporation that has juris-

  

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   2:12-cv-11194-RHC-DRG Doc # 21-3 Filed 05/25/12 Pg 4 of 12 Pg ID 54P5age 3

Not Reported in F.Supp.2d, 2007 WL 2572268 (N.D.Ohio)

(C ite as: 2007 W L 2572268 (N.D. O hio))         
  

diction over the place at which the person estab-

(1) whether the judgment would settle the contro-

lishes the residence or occupies the residential

versy;

premises in question, has a cause of action for injunctive relief against the person. The plaintiff shall not be required to prove irreparable harm in order to obtain the relief.   
*3 Section 2950.034 contains no exception or ³*UDQGIDWKHr Clause´ exempting sex offenders who were convicted before Section 2950.034 became effective, or who owned their homes before its effective date, nor is there any exemption for sex offenders who established his or her residence in compliance with the statute before a school or day care center moves within 1000 feet of him or her.   
III. Conclusions Of Law Plaintiff Mikaloff asks this Court to find that O.R.C. § 2950.034 violates the Constitution's Ex Post Facto Clause because it is punitive and the Ohio General Assembly enacted it long after he had been convicted and after he had served his sen-

   (2) whether the declaratory judgment action
would serve a useful purpose in clarifying the
legal relations at issue;   
(3) whether the declaratory remedy is being used
merely for the purpose of ³SURFHGXUDl fencing´or
³Wo provide an arena for a race for res MXGLFDWD´   
(4) whether the use of a declaratory action would
increase the friction between our federal and state
courts and improperly encroach on state jurisdic-
tion; and   
(5) whether there is an alternative remedy that is
better or more effective.   
Bituminous Casulty Corp. v. J & L Lumber Co., 373 F.3d 807, 813 (6th Cir.2004).   
Where a plaintiff establishes a constitutional

tence. He asks the Court to enjoin its enforcement,

violation after a trial on the merits, the Plaintiff

as against him. In support of his claim that O.R.C. §

should receive a permanent injunction if (1) she or

2950.034 is an ex post facto law, Mikaloff argues

he has shown a continuing irreparable injury if the

that the Ohio General Assembly intended to impose

court fails to issue the injunction, and (2) the lack

punishment with O.R.C. § 2950.034. Alternatively,

of an adequate remedy at law. Kallstrom v. City of

he says O.R.C. § 2950.034 is so punitive in effect

Columbus, 136 F.3d 1055, 1067 (6th Cir.1998).

that any innocent legislative intent does not save it.
   Regarding his claim that O.R.C. § 2950.034 is

   The Ex Post Facto Clause of the Federal Con-
stitution ³IRUELGs the Congress and the States to en-

punitive in effect, Mikaloff argues the statute is

act any law µZKLFh imposes a punishment for an act

punitive because (a) it restricts where offenders can

which was not punishable at the time it was com-

live in a manner similar to probation and parole,

mitted; or imposes additional punishment to that

prototypical punishments; and (b) applies for the

then prescribed.¶ ³ Weaver v. Graham, 450 U.S. 24,

offender's life, irrespective of whether Ohio shows

29 (1981), quoting Cummings v. Missouri, 4 Wall.

that Mikaloff poses a continuing threat. After con-

277, 325-326 (1867). The Clause seeks to require

sidering the parties arguments, the Court concludes

fair warning that certain conduct could lead to pun-

that the residency restriction violates the Constitu-

ishment and to restrain potentially vindictive legis-

tion's Ex Post Facto Clause.

lation. Id. It includes laws that enhance criminal

   A. Standards of Review In this case, Plaintiff Mikaloff seeks a declaratory judgment and injunctive relief. Courts considers five factors in determining whether a declaratory judgment is appropriate:

penalties: ³7Ke heart of the Ex Post Facto Clause, U.S. Const., Art. I, § 9, bars application of a law ³WKDt changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed....´ Johnson v. United States, 529 U.S. 694, 700 (2000), quoting Calder v. Bull, 3

  

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   2:12-cv-11194-RHC-DRG Doc # 21-3 Filed 05/25/12 Pg 5 of 12 Pg ID 54P6age 4

Not Reported in F.Supp.2d, 2007 WL 2572268 (N.D.Ohio)

(C ite as: 2007 W L 2572268 (N.D. O hio))         
  

U.S. 386, 397 (1798) ³7Ke enhancement of a

denominated a civil remedy into a criminal pen-

crime, or penalty, seems to come within the same

alty.´ Hudson v. United States, 522 U.S. 93, 100

mischief as the creation of a crime or penalty; and

(1997). If the intent of the legislature is unclear,

therefore they may be classed WRJHWKHU´. ³7o fall

however, that ³GRHs not justify requiring the

within the ex post facto prohibition, two elements

µFOHDUHVt proof¶ of penal substance.´ Smith v. Doe,

must be present: (1) the law must apply to events

538 U.S. at 110 (Souter, J., concurring in judg-

occurring before its enactment, and (2) it must dis-

ment).

advantage the offender affected by it.´ United States v. Abbington, 144 F .3d 1003, 1005 (6th Cir.1998), quoting United States v. Reese, 71 F.3d
582, 585 (6th Cir.1995).
  
*4 However, the Ex Post Facto Clause is not

   To determine whether the statutory scheme is
so punitive in effect as to negate a state's intent to deem it civil, the Court considers five factors listed in Doe: ³ZKHWKHU, in its necessary operation, the regulatory scheme: has been regarded in our history

necessarily implicated when a retroactively applic-

and traditions as a punishment; imposes an affirm-

able statute ³SURGXFHs some ambiguous sort of

ative disability or restraint; promotes the traditional

µGLVDGYDQWDJH¶ ... but ... whether [it] ... increases

aims of punishment; has a rational connection to a

the penalty by which a crime is punishable.´ Cali-

non-punitive purpose; or is excessive with respect

fornia Department of Corrections v. Morales, 514

to this purpose.´ Id. at 96 (majority opinion). These

U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d

factors are ³QHLWKHr exhaustive nor GLVSRVLWLYH´

588 (1995). The key issue in this case is whether or

United States v. Ward, 448 U.S. 242, 249 (1980).

not the Act is punitive, because only punitive stat-
utes implicate the Ex Post Facto Clause.   
Deciding whether a statute imposes punishment

   B. Legislative Intent
Whether a statutory scheme is civil or criminal
³Ls first of all a question of statutory FRQVWUXFWLRQ´

involves a two-step inquiry. First, the Court con-

Hendricks, 521 U.S. at 361. The Court ³PXVt first

siders whether the Ohio General Assembly

ask whether the legislature, in establishing the pen-

³LQGLFDWHd either expressly or impliedly a prefer-

alizing mechanism, indicated either expressly or

ence for one label [punitive or civil] or the RWKHU´

impliedly a preference for one label or the RWKHU´

United States v. Ward, 448 U.S. 242, 248 (1980). If

Hudson, 522 U.S. 93, 99 (1997). To determine

the Ohio General Assembly indicates, either ex-

whether the legislature impliedly indicated its in-

pressly or impliedly that the legislature's intent was

tent, the Court will consider the other attributes the

punitive, then the inquiry ends, and the statute is

Supreme Court noted in Doe, including the manner

subject to the ex post facto prohibition. Kennedy v.

of the law's codification or the enforcement proced-

Mendoza-Martinez, 372 U.S. 144, 169 (1963).

ures it establishes. See Doe, 538 U.S. at 94.

   If the Ohio General Assembly did not intend

   *5 The Court finds that the Ohio General As-

the statute to be punitive, or its intent is ambiguous,

sembly intended the residency restriction to be pen-

then the Court decides whether the statute is ³VR

al. There are, however, arguments on both sides.

punitive either in purpose or effect´ that it should

For that reason, the Court considers the law to be

be considered to constitute punishment. Ward, 448

somewhat ambiguous. The Court will first consider

U.S. at 249. This two-step inquiry is known as the

the law's lack of expressed purpose. The Court will

³LQWHQW-HIIHFWV´

then discuss the law's implied purpose, considering

  
If the legislature intended the scheme to be civil³µRQOy the clearest proof¶will suffice to override legislative intent and transform what has been

the law's codification in the criminal code and specifically Chapter 2950. The Court will also discuss the law's enforcement procedures, both in terms of the prosecutors who enforce the residency restric-

  

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Not Reported in F.Supp.2d, 2007 WL 2572268 (N.D.Ohio)

(C ite as: 2007 W L 2572268 (N.D. O hio))         
  

tion and the injunction remedy. Finally, the Court

designate the bill, or the provisions within it, as

will consider other courts' construction of the law's

nonpenal.

purpose.   
1. The Ohio Law's Expressed Purpose
The Ohio General Assembly did not expressly

   2. The Ohio Law's Implied Purpose
a. The Law's Codification

indicate whether the residency restriction is criminal or civil. Defendants argue that Section 9 of Senate Bill 5, an uncodified section of the bill that enacted the residency restriction, shows the legislature's intent that O.R.C. § 2950.34 is civil. The language states:   
SECTION 9. This act is hereby declared to be an emergency measure necessary for the immediate preservation of the public peace, health, and safety. The reason for such necessity is that it is crucial for this state to make the changes in this act as soon as possible, in order to expand the protections and information afforded residents of this state regarding offenders who commit sexually oriented offenses or child-victim oriented offenses and in order to comply with the federal Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act and standards adopted under that Act and receive related federal funding that is contingent upon compliance. Therefore, this act shall go into immediate effect.   
Initially, this language suggests the bill is civil, and for ³WKe immediate preservation of the public peace, health, and safety.´But a closer look quickly reveals this is not the case. The language is intended to address the effective date of the law, not the general intent of the law. The Court further notes that Senate Bill 5 included provisions defining certain acts as crimes. See, e.g., 2003 Legis. Serv. Ann. 29 at 42-43 (codified at O.R.C. § 2907.07); Id. at 43 (codified at O.R.C. § 2919.24). It also includes certain sentencing provisions. Id. at 48-54 (codified at O.R.C. § 2929.13); Id. at 54-58 (codified at O.R.C. § 2929.19); Id. at 58-60 (codified at O.R.C. § 2929.21). The entire bill, to which Section 9 applies, cannot be civil when it includes such provi-

Ohio codified the residency restriction in Section 2950.034 in Ohio's criminal code. Where a legislature chooses to codify a statute suggests its intent. Hendricks, 521 U.S. at 361. A statute's codification, however, is not dispositive. Doe, 538 U .S. at 94; see also United States v. One Assortment of 89 F irearms, 465 U.S. 354, 364-65 (1984) (holding a forfeiture provision civil despite its being in the criminal code). In Doe, for instance, placement in the criminal procedure code did not negate the legislature's expressed purpose to create a civil law. Doe, 538 U.S. at 94. This case stands in contrast. The legislature did not express a purpose to create a civil law. The Ohio General Assembly's failure to identify the residency restrictions found in O.R.C. § 2950.034 as civil and its decision to include the provisioni in its criminal chapter gives some suggestion that the residency restriction was intended to be punitive. See, Hendricks. 521 U.S. at 361.   
*6 The General Assembly's treatment of other provisions in the same chapter further supports the inference that Ohio's legislature intended Section 2950.034 to impose criminal, not civil sanctions. In dealing with Ohio's registration and notification requirements for sex offenders, the General Assembly expressly stated that these provisions, have a ³QRQ-punitive purpose.´ O.R.C. § 2950.02; see also State v. Cook, 700 N.E.2d 570 (1998) (finding Ohio's sex offender registration and notification laws are non-penal). Yet, Section 2950.034 is tellingly silent regarding whether the residency restriction has a civil or punitive purpose. Based on the statutory construction rule of expressio unius, the Ohio legislature's designation of the registration and notifications provisions as non-penal suggests that the other provisions of Chapter 2950, including the residency restriction, are penal.

sions. For those two reasons, Section 9 does not

  

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Not Reported in F.Supp.2d, 2007 WL 2572268 (N.D.Ohio)

(C ite as: 2007 W L 2572268 (N.D. O hio))         
  

Defendants rely on a sentence in State v. Cook

abouts.

that described Chapter 2950 as ³VHUY>LQJ] the solely remedial purpose of protecting the public.´ 700 N.E.2d 570, 585 (1998). The rest of the case, however, focused on the registration and address verification procedures. As described, the General Assembly had explicitly said that these registration and address verification provisions were not intended to be punitive. The Ohio Supreme Court's onesentence description of Chapter 2950 as remedial adds little. More importantly, O.R.C. § 2950.99 makes failing to comply with other, specific provisions of Chapter 2950 a felony. This inclusion of criminal penalties is penal and not something that ³VHUYHs the sole remedial purpose of protecting the public.´ Had the legislature made it a felony to fail to register and made that retroactive, it also would have violated the Ex Post Facto Clause. For these reasons, the Court finds the Ohio General Assembly intended Chapter 2950 to have a civil purpose for those provisions in which the legislature has expressed such an intent but not for other provisions.   
In Cutshall v. Sundquist, the Sixth Circuit found Tennessee's sex offender registration law non-punitive, despite its placement in the criminal code and without any expressed legislative intent by looking to the law's language. 193 F.3d 466, 474 (6th Cir.1999). The Sixth Circuit considered the provisions ³PHUHOy require registrants to supply basic information; the burdens imposed are minor, involving only the completion of the appropriate forms.´ Id. These provisions ³HYLGHQFH>G] an intent on the part of the legislature to monitor the whereabouts of convicted sex offenders. Moreover, the authority of law enforcement agencies to disclose registry information is limited to situations in which disclosure is necessary to protect the SXEOLF´ Id. Ohio's residency restriction, however, manifests an intent far beyond monitoring the whereabouts of sex offenders. The Tennessee sex offenders could move anywhere, provided they kept the authorities informed of their movements. Ohio, on the other hand, restricts its sex offenders' behavior beyond requiring they notify the authorities of their where-

   b. The Law's Enforcement Procedures
*7 In determining whether the Ohio General Assembly intended the residency provisions to impose a punitive sanction, the Court also looks to the statute's enforcement procedures. Ohio's residency restriction provides for an injunction, and a resident living within 1,000 feet of the school or childcare center or the city prosecuting attorney may bring the action. In Hudson, the Supreme Court found non-punitive legislative intent of a law that empowered an administrative banking agency to enforce it. 538 U.S. at 103. By contrast, here county prosecuting attorneys or other municipal chief legal officers hold the power to enforce the law's provisions. O.R.C. § 2950.031(B). While this does not alone establish the General Assembly's intent to make the law penal, it contributes to the argument that the law was so intended.   
Defendants argue that county prosecutors enjoy civil, as well as criminal authority. They contend that because the prosecutors have the legal authority to advise and represent the local boards of commissioners, elections, etc., their ability to bring an enforcement action under the residency restriction law does not make the law penal. The county prosecutors, however, only have the authority to bring actions that the civil officer or board directs the prosecutor to defend them in suits brought against them. In other words, the county prosecutors act as counsel for civil boards. They do not have their own, independent authority to bring actions that are not criminal in nature. The fact that prosecutors can bring these enforcement actions acting alone, therefore, favors finding a penal intent.   
Further, Defendants argue that the County Prosecutors can only seek an injunction and that neighbors can bring these actions. The Court agrees that injunctions are a civil remedy. Further, neighbors' ability to bring an enforcement action gives some support for Defendants argument that Section 2950.034 provides a civil remedy. On balance, because prosecutors can bring the actions but the en-

  

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Not Reported in F.Supp.2d, 2007 WL 2572268 (N.D.Ohio)

(C ite as: 2007 W L 2572268 (N.D. O hio))         
  

forcement mechanism is an injunction, the Court

sions. Neither post-conviction relief nor victims'

finds the enforcement procedures ambiguous as to

rights protections restricts otherwise legal behavior

whether the law was intended as criminal or civil.

in a manner similar to the residency restriction. As

   3. Other Challenges to the Ohio Law
Two Ohio Courts have considered similar challenges and have found the legislature intended the residency restriction to be civil. See Doe v. Petro, 2005 WL 1038846 (S.D.Ohio May 3, 2005); State v. Billings, 860 N.E.2d 831 (Ohio Ct.Com.Pl.2006). Doe v. Petro, however, does not engage in any analysis, rather it simply states the statute is nonpunitive as if it were a foregone conclusion. The Court finds this not persuasive.

discussed above, Chapter 2950 includes provisions designated failing to register or notify the officials of a move as a felony. O.R.C. § 2950.99. While the underlying duty to register is not punitive, the felony of failing to register is a criminal provision. The victims' rights and post-conviction relief chapters do not include any designations of crimes as felonies. Chapter 2950 clearly has a mixed purpose.   
Based on the above stated reasons, this Court

   In finding O.R.C. § 2950.034 nonpunitive,
Billings found support in its providing injunctive relief; its codification in the same section as the registration and notification provisions that include a statement saying that they are intended to be a civil

finds, on balance, the legislature intended the statute as punitive. Even if it did not, the statute's intent is at the very least unclear. For that reason, the Court will consider the statute's effect.    D. The Effect of the Statute

control, and that the criminal code contains other

Where a legislature intends a statute to be pun-

traditionally civil provisions such as post-

itive, ³WKDt ends the inquiry.´ Doe, 538 U.S. at 92.

conviction relief and victims' rights protections.

Even if the legislature's intent is unclear, however,

Billings, 860 N.E.2d at 85-86. The Court has

the effect of the statute would meet the second

already analyzed the first two of these arguments

prong of Doe. Only the ³FOHDUHVt proof´ that the

above.

overwhelming effect of the law is to impose pun-

   *8 In Billings the Ohio trial court also relied on
Doe v. Smith stating that the imposition of restric-
tions on sex offenders is a nonpunitive governmental objective. 860 N.E.2d at 85 n. 15 citing Doe, 538
U.S. at 93. This just begs the question. The real

ishment will negate the legislature's clearly expressed intent. Id. An unclear legislative intent
³GRHs not justify the µFOHDUHVt proof¶ of penal substance´ standard. Id. at 110 (Souter, J., concurring).   
Turning to the Doe factors, the Court finds the

question is the nature of the restriction. In uphold-

residency restriction imposes an onerous affirmat-

ing notification and registration requirements as

ive disability and restraint; is analogous to parole

nonpunitive restrictions, the Doe Court explicitly

and probation, historical forms of punishment; pro-

emphasized that these requirements ³>GLG] not re-

motes the traditional aims of punishment, de-

strain activities sex offenders may pursue but

terrence and retribution; the law is at best minim-

leaves them free to change jobs or UHVLGHQFHV´

ally related to the non-punitive purpose of protect-

Doe, 538 U.S. at 100. At the very least, this sug-

ing children and is excessive in relation to this al-

gests that residency restrictions present a different

leged purpose.

case from registration and notification provisions. This Court concludes, therefore, that Billings is not
persuasive.   
Finally, the Court finds little importance that

   1. Affirmative Restraint
As applied to Mikaloff, the residency restriction imposes an onerous affirmative disability and restraint. In determining whether the act imposes a

the Ohio criminal code contains other civil provi-

restraint the Court ³LQTXLUH>V] how the effects of the

  

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   2:12-cv-11194-RHC-DRG Doc # 21-3 Filed 05/25/12 Pg 9 of 12 Pg ID 55P0age 8

Not Reported in F.Supp.2d, 2007 WL 2572268 (N.D.Ohio)

(C ite as: 2007 W L 2572268 (N.D. O hio))         
  

Act are felt by those subject to it. If the disability or

Plaintiff in this case. Plaintiff Mikaloff is not ³IUHH

restraint is minor and indirect, its effects are un-

to change residences,´ but can only move to homes

likely to be punitive.´ Doe, 538 U.S. at 99-100. The

that are not within 1,000 feet of a school. Even

Doe Court noted that Alaska's notification and re-

more onerous, Plaintiff is not free to remain in his

gistration requirements ³GR[ ] not restrain activities

family home, a home that has been in his family for

sex offenders may pursue but leave[ ] them free to

more than 50 years and where he can live rent-free

change jobs or residences.´ Id. at 100. Not so here. In finding the registration and notification requirements to be constitutional, the Court emphasized that ³WKe record in this case contains no evidence that the Act has led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred.´ Id.   
*9 In this case, the law prevents a sex offender

   Defendants acknowledge the law imposes an
affirmative restraint, but argues the imposition does not require a finding that the government has imposed punishment. See Doe v. Miller, 405 F.3d 700 (8th Cir.2005). The Court acknowledges that no factor in this analysis is dispositive, as both Miller and Kansas v. Hendricks found affirmative restraints in the analyzed schemes but neither found

from living in his own home, even if he purchased

the law punitive. Hendricks, 521 U.S. 346, 363

the home before the law took effect or if a daycare

(1997); Miller, 405 F.3d at 721. This does not

or school moved within 1,000 feet of his home after

change this court's analysis that the residency re-

he established residency there. This is a substantial

striction imposes a restraint.

housing disadvantage. While the law does not affect ownership of property, it affects one's freedom to live on one's own property. A sex offender is subject to constant eviction, and there is no way for him or her to find a permanent home. For, there are no guarantees a school or daycare will not open up within 1,000 feet of anywhere. This may prevent an offender from purchasing a home, from remodeling it, or even from entering into long-term service contracts for amenities such as cable television. Judge Sheehan, Kenton District Court, Fourth Division in the Commonwealth of Kentucky discussed how residency restrictions could impact ³ZKHUe an offender's children attend school, access to public transportation for employment purposes, access to employment opportunities, access to residential alcohol and drug abuse rehabilitation programs and even access to medical care and residential nursing home facilities for the aging offender.´ Commonwealth v. Baker, 07-M-00604 (Kenton Dist. C., 4th Div. Apr. 20, 2007) cert. granted Aug. 23, 2007, 2007-SC-000347. This Court agrees that ³UHVLGHQF\ restrictions carry major consequences above and beyond the location of one's home.´ Id.   
Further, the Ohio law affirmatively restrains

   2. Regarded in our History and Traditions as Punishment
The Court finds the residency restriction analogous to the residency restrictions typical to probation and parole. Probation and parole are regarded by our history and traditions as punishment. ³>3@DUROe is an established variation on imprisonment of convicted criminals.... The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.´   Morrissey v. Brewer, 408 U.S. 471, 477 (1972). Further, Congress lists probation as among the appropriate types of punishment a judge can impose. 28 U.S.C. § 994.   
*10 The residency restriction places a vetopower over the location of the sex offenders' residence in the hands of law enforcement and that vetopower continues after the sex offender establishes his residence. Parole officers and parole boards hold a similar power over parolees. They must approve a parolee's initial residence and can compel the parolee to move. In this case, Plaintiff Mikaloff needed the parole board's approval of his mother's house before the board would release him and the

  

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   2:12-cv-11194-RHC-DRG Doc # 21-3 Filed 05/25/12 Pg 10 of 12 Pg ID 5P5a1ge 9

Not Reported in F.Supp.2d, 2007 WL 2572268 (N.D.Ohio)

(C ite as: 2007 W L 2572268 (N.D. O hio))         
  

parole board retained the power to force Plaintiff to

are [goals] reserved for the criminal system

move if it believed the home may trigger re-offense

DORQH´. Ohio's residency restriction serves both.

or otherwise violate a condition of his parole.
   The residency restriction actually provides for

   The publicity of the residency restrictions in-
creases general deterrence. ³'HWHUUHQt measures

a more onerous punishment than parole because it

serve as a threat of negative repercussions to dis-

is a blanket prohibition. In determining whether a

courage people from engaging in certain behavior

particular home is suitable for a particular parolee,

.´ State v. Cook, 700 N.E.2d 570, 583 (Ohio 1998).

the parole officer or board undertakes a case-

Given the restriction that O.R.C. § 2950.034 places

specific analysis. The residency restriction engages

up on sex offenders it serves an obvious deterrent

in no such case-by-case analysis. It limits a sex of-

purpose.

fender in a way that goes beyond the limits tradi-
tionally placed on where a parolee may live.   
Further, the residency restriction applies for

   Defendants cite Doe, stating that ³>W@o hold the
mere presence of a deterrent purpose renders such
sanctions µFULPLQDO¶ ... would severely undermine

life, whereas parolees are usually paroled for a cer-

the Government's ability to engage in effective reg-

tain period of time. The law prevents Plaintiff Mi-

ulation.´ Smith v. Doe, 538 U.S. at 102. The Court

kaloff from ever living in his family home again,

agrees, but Ohio's residency restriction does more

regardless of whether he ³UHLQWHJUDWH>V] into society

than promote general deterrence.

as [a] constructive individual.´ Morrissey, 408 U.S. at 477. In this way, the law goes well beyond parole in that it never allows the sex offender to reintegrate into society.   
The Defendants argue that non-compliance

   *11 Ohio's residency restriction significantly
furthers retributive purposes. ³5HWULEXWLRn is ven-
geance for its own sake. It does not seek to affect
future conduct or solve any problem except realizing justice.´ State v. Cook, 700 N.E.2d 570, 583

with the residency restriction does not trigger crim-

(Ohio 1998). The residency restriction applies re-

inal sanction, whereas violating a parole or proba-

gardless of the type of offense committed, the of-

tion condition does. The Court does not believe,

fender's classification level, and his or her risk of

however, that the law must be exactly the same as

re-offense. A feeble, aging paraplegic must leave

parole to be punitive. Although somewhat different

his home just as a younger one. This lack of any

from parole, O.R.C. § 2950.034 is sufficiently sim-

case-by-case determination demonstrates that the

ilar.

restriction is ³YHQJHDQFe for its own sake.´Defend-

   Finally, subjecting a sex offender to constant
ouster from his or her home seems a significant deprivation of liberty and property interests. It sentences them to a life of transience, forcing them to

ants argue the law is remedial and not punitive in
nature, but its failure to make any differentiations
between offenders belies this argument.    4. Rational Relation to a Nonpunitive Purpose

become nomads. While such a punishment may be

The Court heard conflicting expert testimony

appropriate, it cannot be applied retroactively

on the efficacy of the residency restriction. The

through ex post facto legislation.

Court, however, does not believe its duty is to

   3. Promotes Traditional Aims of Punishment
Punishment aims to impose retribution and deterrence. Smith v. Doe, 538 U.S. at 102; Kansas v. Hendricks, 521 U.S. at 373 (2002) (Kennedy, J.,

judge the wisdom of the legislature's enactment, only whether it rationally relates to a non-punitive
purpose.   
Defendants assert the residency restriction is

FRQFXUULQJ³>5@HWULEXWLon and general deterrence

rationally related to the non-punitive purpose of

  

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   2:12-cv-11194-RHC-DRG Doc # 21-3 Filed 05/25/12 Pg 11 of 12 Pg ID 5P5a2ge 10

Not Reported in F.Supp.2d, 2007 WL 2572268 (N.D.Ohio)

(C ite as: 2007 W L 2572268 (N.D. O hio))         
  

protecting school children from sex offenders near

offender lived near the school, the children's par-

schools. The restriction does limit the access and

ents would be notified of their presence, due to

opportunity that a sex offender will have in re-

Ohio's notification law, and therefore could advise

offending against a child walking in front of his

their children to stay away from the offender. If the

residence to or from school. Yet, it only restricts a

offender is only present during the day, however,

sex offender's place of sleep. It does not limit the

the children's parents will have no warning of the

offender's ability to occupy a residence in proxim-

potential danger.

ity to the school during school hours. It dos not limit the offender's ability to go to any public park or drive on any street within 1,000 feet of a school. And it does not limit the offender's access to children in the offender's own neighborhood.   
Ohio has found Mr. Mikaloff a sexual predator.

   *12 Further, Ohio's residency restriction does
not address the majority of child sex abuse cases because those cases involve family members or acquaintances. The overwhelming majority of child sex abuse cases involve an abuser who is related to or acquainted with the child victim. [Tr. 87, 91, 93].

But its statute does not and will not prevent him

Child sex abuse involves an offender who is related

from spending all of his days, while school is in

to the child (including step-relationships) approx-

session and while children are traveling to and from

imately fifty percent of the time. Yet, the law has

school, at his family home within 1000 feet of the

no effect on sex offenders who abuse family mem-

school. Indeed, the Court finds it likely that on the

bers, and does not even restrict these offenders abil-

facts before it Mr. Mikaloff will do just that. The

ity to live with their previous victims.

statute, instead, forces him to sleep in his truck at night, when, presumably, the children are safely at home. See also Commonwealth v. Baker, 07-M-00604, at 26 (Kenton Dist. Ct., 4th Div. April 20, 2007) cert. granted Aug. 23, 2007, 2007-SC-000347 (noting a sex offender ³FDn return to the family home from which he was forced to move on a daily basis if he so chooses, provided he does not sleep there, and peer out the window in deviant lust at the toddlers frolicking on the playground. While doing so, provided he can conceal his act of self gratification from public view, he can even masturbate. He can do all these things legally, without offending the residency UHVWULFWLRQV´   
Both experts agreed that an important question asks whether many children reside around the sex offender's house, not that home's proximity to a school. [Tr. 194-196]. Thus, Ohio's residency restriction shifts the risk of molestation from children living near a school to children living farther away. [Tr. 196]. As Defendant's expert testified: ³LW
s not the magic of the 1000-foot. It's that we can deny access and opportunity to a population that is vulnerable for sex offenders.´ [Tr. 201]. Indeed, if the sex

   It is unclear that the residency restriction
denies sex offenders access and opportunity to school children. The Court only considers, however, whether a ³UDWLRQDl connection´exists. See Doe, 538 U.S. at 102. The Court concludes that to restrict where an individual sleeps at night, even while it does not restrict where he or she spends her days, has some rational relation to restricting access or opportunity to children in those areas.    5. The Statute's Excessiveness with Respect to that Purpose
While the statute is rational, the Court finds the statute is excessive with respect to its stated purpose. The complete lack of individualized risk assessment troubles the Court. As Justice Souter noted in Doe ³WKe fact that [the registration and notification law] uses past crimes as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on.´ Doe, 538 U.S. at 109. The Ohio statute sweeps in individuals regardless of their current risk of recidivism.

  

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   2:12-cv-11194-RHC-DRG Doc # 21-3 Filed 05/25/12 Pg 12 of 12 Pg ID 5P5a3ge 11

Not Reported in F.Supp.2d, 2007 WL 2572268 (N.D.Ohio)

(C ite as: 2007 W L 2572268 (N.D. O hio))         
  

It would be possible to base a residency restriction on a more individual basis. For instance, Arkansas has a similar statute with individualized risk assessment, as do many other states. See Weems v. Little Rock Police Dep't, 453 F.3d 1010, 1017 (8th Cir.2006) (noting the Arkansas residency restriction statute with individualized risk assessment was on ³VWURQJHr constitutional footing than

IT IS SO ORDERED.
  
N.D.Ohio,2007.
Mikaloff v. Walsh
Not Reported in F.Supp.2d, 2007 WL 2572268
(N.D.Ohio)    END OF DOCUMENT

[an] Iowa statute´ without similar individualized

assessment). But see Doe v. Miller, 405 F.3d 700

(8th Cir.2005) (finding Iowa residency restriction

without an individualized assessment did not viol-

ate the Ex Post Facto clause of the Federal Consti-

tution); c.f. id. at 725-26 (Melloy, J., dissenting)

(arguing the law was excessive in relation to its

purpose in part because of the lack of individual-

ized assessment).

   E. Appropriate Relief

A declaratory judgment is appropriate in this

case. It would both completely settle the contro-

versy and readily clarify the legal relations between

Plaintiff Mikaloff and Defendants. See Bituminous

Casulty Corp., 373 F.3d at 813. Further, no pending

state court proceedings currently exist and so the

judgment is not a ³UDFe to res judicata´nor would it

encroach upon state court jurisdiction. Finally,

there is no more effective remedy for protecting

Plaintiff Mikaloff's rights. See id.

   *13 Plaintiff has also shown a continuing irre-

parable injury if the court fails to issue the injunc-

tion, and the lack of an adequate remedy at law. See

Kallstrom, 136 F.3d at1067. This Court has already

found that Mikaloff's inability to continue to reside

in his home would cause him severe injury. Further,

this injury has no adequate legal remedy.

   I V. Conclusion

For the reasons stated above, the Court D E-

C L A R ES that O.R.C. § 2950.034 violates the ex

post facto clause of the Constitution and E NJ O I NS

defendants from enforcing this law against Plaintiff

Mikaloff. This action is terminated under

Fed.R.Civ.P. 58.

  

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2:12-cv-11194-RHC-D  RG Doc # 21-4 Filed 05/25/12 Pg 1 of 18 Pg ID 554

EXHIBIT 17
Elwell v. Township of Lower, 2006 WL 3797974 (N.J. Super. Ct. 2006)

  

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2:12-cv-11194-RHC-DRG Doc # 21-4 Filed 05/25/12 Pg 2 of 18 Pg ID 555

Not Reported in A.2d, 2006 WL 3797974 (N.J.Super.L.) (C ite as: 2006 W L 3797974 (N.J.Super. L .))

Page 1

Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
Superior Court of New Jersey, Law Division,
Cape May County. Steven ELWELL and Jennifer Elwell, Plaintiffs,
v. TOWNSHIP OF LOWER, Defendant.
Decided Dec. 22, 2006.
Frank L. Corrado (Barry, Corrado, Grassi & Gibson, P.C., Attorneys); Edward Baracas, American Civil Liberties Union of New Jersey Foundation, for plaintiffs.
Anthony Monzo and Thomas Hillegas (Monzo Catanese, P.C., Attorneys) for defendant.
Stephen M. Latimer submitted a brief for amicus curiae New Jersey Chapter of the Association for the Treatment of Sexual Abusers (Laughlin & Latimer, Attorneys).
Richard D. Pompelio submitted a brief for amicus curiae New Jersey Crime Victims' Law Center.
VALERIE H. ARMSTRONG, A.J.S.C. I. BACK GRO UND
*1 This action filed on November 28, 2005, presents four legal challenges to the validity of Lower Township's Ordinance No.2005-14 adopted in August 2005, and as amended on December 5, 2005 by Ordinance No.2005-25 (collectively the 
   . The Ordinance, codified in Sections 279-1 et seq. of the Lower Township Code, is titled    d Sex Offender Prohibition Zones 
The Ordinance prohibits registered sex offend-

ers from residing or loitering within 500 feet of any school, park, playground, recreation area, or day care facility or within 25 feet of a school bus stop located in Lower Township (hereinafter the  , or adjacent municipalities. The Ordinance defines    d sex offender as any person over age 18 who is required to register pursuant to N.J.S.A. 2C:7-1 et seq.   s 
Plaintiff Steven Elwell (hereinafter  ) is a Tier 1 registered sex offender. Plaintiff Jennifer Elwell is Elwell's wife and the mother of their two children. The Ordinance was adopted during a period of time when the plaintiffs were in the process of locating a home in order to move into the Township.
Plaintiffs' Complaint challenges the Ordinance on four specific grounds: (1) The Ordinance is preempted by state law; (2) it deprives plaintiffs of substantive due process under the New Jersey Constitution; (3) it violates the ex post facto and double jeopardy clauses of the New Jersey Constitution; and (4) the Ordinance is ultra vires and unconstitutionally vague.
II. F ACTS Plaintiffs and their two young children cur-
rently live in Middle Township. Elwell is a registered Tier 1 (lowest risk) sex offender subject to the provisions of Megan's Law. His sex offender registrant status results from a conviction in 2001 for aggravated sexual assault. Hence, he must comply with various post conviction restrictions imposed on Tier 1 offenders by Megan's Law, including registration with the municipality in which he resides.
Pursuant to N.J.S.A. 2C:43-6.4, Elwell is also subject to lifetime parole supervision (hereinafter y Supervision for Life or  ) and limitations on his ability to leave the State of New Jersey. Consequently, his parole officer is required to approve any change in Elwell's residency. Such approval would include relocation to Lower Town-

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   2:12-cv-11194-RHC-DRG Doc # 21-4
Not Reported in A.2d, 2006 WL 3797974 (N.J.Super.L.) (C ite as: 2006 W L 3797974 (N.J.Super. L .))         
  
ship, based upon an assessment of the appropriateness of the residence and its location.   
Due to having outgrown their current residence, the plaintiffs decided to move from their Middle Township home to Lower Township where they have family ties. Subsequent to the decision to relocate, the Lower Township Council adopted Ordinance No.2005-14 which prohibited all registered sex offenders from residing or loitering within 2,500 feet of any school, park, playground, recreation area, day care facility or school bus stop within the Township or adjacent municipalities. As noted above, the geographical prohibitions were reduced by subsequent amendment. All other provisions of the Ordinance remained intact.   
*2 The Ordinance provides that it is to be enforced by the Lower Township Police Department. Penalties for violation of the Ordinance include a fine ranging from $100 to $1,250 and/or imprisonment or community service not to exceed 90 days. A person convicted of violating the Ordinance within one year of a prior violation shall be sentenced to an additional fine of $1,250.   
The Ordinance defines ³ORLWHULQJ´ as a person FN1, who either on foot or in a motor vehicle ³ZDQGHUs or remains idle in essentially one location, sits, lounges, loafs, walks about aimlessly, or repeatedly frequents the same location or repeatedly circles in a motor YHKLFOH´   
FN1. While the Ordinance does not define ³SHUVRQ´, review of the Ordinance in its entirety implies that ³SHUVRQ´ as used throughout the Ordinance applies only to Megan's Law registrants.    The Ordinance states that it is the intent of the Township Council ³&RXQFLO´) ³Wo protect and insure the health, safety and welfare of children within the Township and not to penalize registered sex RIIHQGHUV´    The prohibited conduct is set forth in § 279-1:

Filed 05/25/12 Pg 3 of 18 Pg ID 55P6age 2
The Township Council finds and declares that the health, safety, and welfare of children will be enhanced by prohibiting registered sex offenders from residing or loitering within the Township of Lower within 500 feet of any school, park, playground, recreation area, day care facility or within 25 feet of a school bus stop located within Lower Township or adjacent municipalities.   
The plaintiffs opposed the enactment of the Ordinance at the Council's public hearing on the Ordinance. Of particular concern to plaintiffs was the inclusion of Tier 1 offenders in the Ordinance prohibitions.   
Plaintiffs assert that enforcement of the Ordinance will effectively banish them from a significant portion of the Township due to the geographic prohibitions, thereby circumscribing their ability to move about freely and to establish residence in a location which will not violate the Ordinance. Additionally, the Ordinance will restrict Elwell's ability (for fear of violating the loitering prohibition), from being within 500 feet of a school, park, playground, recreation area or day care facility, or within 25 feet of a school bus stop, even though he may be engaging in legitimate and lawful activity with his own children.   
A certification from Rehana Lewis, the Intake Manager for the American Civil Liberties Union of New Jersey, asserts that at least 45 other New Jersey municipalities have enacted ordinances limiting where sex offenders may reside. The restrictions in these ordinances vary considerably, with the buffer zones ranging from 500 feet to 2,500 feet. Some ordinances include as ³SURKLELWHd areas´ school bus stops, bowling alleys, libraries, convenience stores or recreation areas. Some ordinances exclude Tier 1 offenders. Several ordinances cover almost the entire municipality. Other ordinances exempt homeowners and apply only to renters, while other ordinances include ³JUDQGIDWKHU´ clauses.    III. LE GAL ANALYSIS O F PLAINTI F FS' C HALLENGES TO THE ORDINANCE

  

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   2:12-cv-11194-RHC-DRG Doc # 21-4
Not Reported in A.2d, 2006 WL 3797974 (N.J.Super.L.) (C ite as: 2006 W L 3797974 (N.J.Super. L .))         
  
a. Does state statutory and common law preempt the Ordinance?   
*3 N.J.S.A. 40:48-1 authorizes the governing body of every municipality to ³PDNH, amend, repeal, and enforce ordinances´ in order to regulate a diverse range of subject matter and behaviors. N.J.SA. 40:48-2 provides the following:   
Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law.   
N.J. Const. Art 4, § 7, ¶ 11 provides that: The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. The power of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law.   
While the authority of a municipality to adopt ordinances reasonably related to the public health, safety and welfare is clear, nevertheless, such authority is not without limit. In addressing this state's constitutional grant of powers to municipalities, the Supreme Court in State v. Crawley, 90 N.J. 241, 247-248 (1982) noted that one of the limitations on a municipality's powers is state preemption:   
Nevertheless, two principles limit the permissible scope of municipal legislation. First, as stated in Wagner v. Newark, 24 N.J. 467, 478 (1957), the

Filed 05/25/12 Pg 4 of 18 Pg ID 55P7age 3
grant of legislative powers to municipalities ³UHODWHs to matters of local concern which may be determined to be necessary and proper for the good and welfare of local inhabitants, and not to those matters involving state policy or in the realm of affairs of general public interest and applicability.´Second, municipalities may not enact ordinances on matters otherwise competent for local legislation if the State has preempted the field. Overlook Terrace Management Corp. v. West New York Rent Control Bd., 71 N.J. 451, 460-62 (1976); Summer v. Teaneck Twp., 53 N.J. 548, 554-55 (1969); Kennedy v. Newark, 29 N.J. 178 (1959).
   In the matter of Mack Paramus Co. v. Mayor
and Council of Paramus, 103 N.J. 564, 573 (1986), the Court stated that legislative intent was a critical factor in determining whether the state has exhausted a field to such an extent that preemption bars municipal legislation:   
Although it is a judicially-devised standard, the doctrine of state preemption turns upon the intention of the Legislature. If the court determines that the Legislature intended ³LWs own actions, whether it exhausts the field or touches only part of it, to be exclusive,´ then it will conclude that the State has preempted the field, thereby barring any municipal legislation. State v. Uletsky, 54 N.J. 26, 29 (1969); see Summer v. Teaneck, 53 N.J. 548, 555 (1969)
   *4 In Overlook Terrace Management Corp., supra, the Supreme Court enumerated five
factors to be considered in preemption analysis:   
1. Does the ordinance conflict with the state law, either because of conflicting policies or operational effect, that is, does the ordinance forbid what the Legislature has permitted?    2. Was the state law intended expressly or impliedly to be exclusive in the field?    3. Does the subject matter reflect a need for uni-

  

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   2:12-cv-11194-RHC-DRG Doc # 21-4
Not Reported in A.2d, 2006 WL 3797974 (N.J.Super.L.) (C ite as: 2006 W L 3797974 (N.J.Super. L .))         
  
formity?
  
4. Is the state scheme so pervasive or compre-
hensive that it precludes coexistence of municipal
regulation?   
5. Does the ordinance stand as an obstacle to the accomplishment and execution of the full pur-
poses and objectives of the Legislature? [Citations omitted]. [ 71 N.J. at 461.]   
Megan's Law, including the CSFL provisions, are included within the Code of Criminal Justice. N.J.S.A. 2C:1-1 et seq. N.J.S.A. 2C:1-5(d) provides
that   
Notwithstanding any other provision of law, the local governmental units of this State may neither
enact nor enforce any ordinance or other local
law or regulation conflicting with, or preempted
by, any provision of this code or with any policy
of this State expressed by this code, whether that policy be expressed by inclusion of a provision in
the code or by exclusion of that subject from the
code.   
The Supreme Court, in Crawley, supra at
250-251, addressed the fact that the Legislature in-
tended the Code of Criminal Justice to be a clear,
complete, and comprehensive system of criminal
law designed for uniform statewide treatment. The Crawley court observed that there exists general legislative intent to exclude local legislation from areas covered by the Code of Criminal Justice. See also, State ex. rel. Atlantic County Prosecutor v. Atlantic City, 379 N.J. Super. 515, 520-521
(App.Div.2005).   
Both Megan's Law and the CSFL legislation
provide comprehensive regulation of almost every
aspect of the lives of convicted sex offenders. The
constitutionality of Megan's Law, which addresses registration and community notification, as well as
Internet posting of personal information regarding
convicted sex offenders was upheld in a challenge by a convicted sex offender in Doe v. Poritz, 142

Filed 05/25/12 Pg 5 of 18 Pg ID 55P8age 4
N.J. 1 (1995). While Doe v. Poritz did not address state preemption since the challenge was to a state statute, the Supreme Court's decision underscored the magnitude of Megan's Law, and its impact on the lives of convicted sex offenders. The Township's minimization of the intent, purpose and impact of Megan's Law as ³PHUHO\´ addressing registration of sex offenders and community notification fails to recognize that the statute is broad, comprehensive and far reaching.   
The Legislature's findings and declarations set forth in Megan's Law at N.J.S.A. 2C:7-1 provide the following:   
The Legislature finds and declares:
  
a. The danger of recidivism posed by sex offenders and offenders who commit other predatory acts against children, and the dangers posed by persons who prey on others as a result of mental illness, require a system of registration that will permit law enforcement officials to identify and alert the public when necessary for the public safety.   
*5 b. A system of registration of sex offenders and offenders who commit other predatory acts against children will provide law enforcement with additional information critical to preventing and promptly resolving incidents involving sexual abuse and missing persons.   
Megan's Law not only requires convicted sex offenders to register with local law enforcement agencies, it also requires such offenders to verify their addresses annually, and to report any change of address. N.J.S.A. 2C:7-2.   
N.J.S.A. 2C:7-8 requires each convicted sex offender to undergo individualized assessment of the risk of re-offense and establishes the levels of community notification of the risk of re-offense for each offender. Specifically, N.J.S.A. 2C:7-8(c) provides the following:
c. The regulations FN2 shall provide for three

  

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   2:12-cv-11194-RHC-DRG Doc # 21-4
Not Reported in A.2d, 2006 WL 3797974 (N.J.Super.L.) (C ite as: 2006 W L 3797974 (N.J.Super. L .))         
  
levels of notification depending upon the risk of
re-offense by the offender as follows:      
FN2. A reference to ³$WWRUQHy General
Guidelines´ promulgated as required by N.J.S.A. 2C:7-8 providing for procedures
for the notification required under Megan's
Law. The guidelines identify factors relev-
ant to risk of reoffense and provide for
three levels of notification ³WLHUV´) depending upon the degree of the risk of re-
offense.   
(1) If risk of re-offense is low, law enforcement
agencies likely to encounter the person registered shall be notified;   
(2) If risk of re-offense is moderate, organiza-
tions in the community including schools, reli-
gious and youth organizations shall be notified in accordance with the Attorney General's
guidelines, in addition to the notice required by
paragraph (1) of this subsection;   
(3) If risk of re-offense is high, the public shall be notified in accordance with the Attorney Gen-
eral's guidelines designed to reach members of
the public likely to encounter the person re-
gistered, in addition to the notice required by
paragraphs (1) and (2) of this subsection.   
N.J.S.A. 2C:7-13(g) requires that detailed per-
sonal information about registered sex offenders re-
main publicly available on the Internet, including among other things, the street address, zip code,
municipality, and county in which the offender
resides.   
N.J.S.A. 2C:43-6.4 subjects most convicted sex offenders to community supervision for life. The
Senate Judiciary Committee Statement, Senate No.
320-L.1994, c. 130 attached to this statutory provision provides that   
This community supervision would begin upon
completion of any term of imprisonment imposed

Filed 05/25/12 Pg 6 of 18 Pg ID 55P9age 5
and persons on community supervision would be monitored as if on parole and would be subject to conditions appropriate to protect the public and foster rehabilitation ... [emphasis added]   
N.J.S.A. 2C:43-6.4(b) provides in pertinent part:   
... Persons serving a special sentence of parole supervision for life shall remain in the legal custody of the Commissioner of Corrections, shall be supervised by the Division of Parole of the State Parole Board, shall be subject to the provisions and conditions set forth in subsection c. of section 3 of P.L.1997, c. 117 (C.30:4-123.51b) and sections 15 through 19 and 21 of P.L.1979, c. 441 (C.30:4-123.59 through 30:4-123.63 and 30:4-123.65), and shall be subject to conditions appropriate to protect the public and foster rehabilitation ... [emphasis added]   
*6 Pursuant to N.J.S.A. 2C:43-6.4, the State Department of Corrections (DOC) adopted regulations which establish uniform and detailed conditions to be imposed upon certain convicted sex offenders whose offenses were committed prior to January 14, 2004. N.J.A.C. 10A:71-6.11. N.J.A.C. 10A:71-6.12 imposes identical uniform, detailed and wide-ranging conditions upon certain convicted sex offenders whose offenses were committed on or after January 14, 2004.   
In the interest of brevity, not all of the DOC regulatory conditions will be addressed in this decision. However, among those conditions relevant to the preemption issue before the court, are the following:   
1. An offender may only reside at a residence approved by the assigned parole officer. N.J.A.C. 10A:71-6.11(b)(5); N.J.A.C. 10A:71-6.12(d)(5).
  
2. An offender must obtain the permission of the assigned parole officer prior to any change of residence. N.J.A.C. 10A:71-6.11(b)(6); N.J.A.C. 10A:71-6.12(d)(6).

  

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   2:12-cv-11194-RHC-DRG Doc # 21-4
Not Reported in A.2d, 2006 WL 3797974 (N.J.Super.L.) (C ite as: 2006 W L 3797974 (N.J.Super. L .))         
  
3. An offender must obtain the permission of the assigned parole officer prior to leaving the state of the approved residence for any purpose. N.J.A.C. 10A:71-6.11(b)(7); N.J.A.C. 10A:71-6.12(d)(7).
  
4. An offender must obtain the permission of the assigned parole officer prior to securing, accepting, or engaging in any employment, business, or volunteer activity and prior to a change of employment. N.J.A.C. 10A:71-6.11(b)(14); N.J.A.C. 10A:71-6.12(d)(14).
  
5. If the offender's victim is a minor, the offender must refrain from initiating, establishing, or maintaining contact with any minor; refrain from attempting to initiate, establish or maintain contact with any minor; and refrain from residing with any minor without the prior approval of the assigned parole officer. N.J.A.C. 10A:71-6.11(c); N.J.A.C. 10A:71-6.12(e).
  
6. Exceptions to the regulations discussed in paragraph 5 above exist when (1) the minor is engaged in a lawful commercial or business activity; in such case, the offender may engage in the lawful commercial or business activity, if the activity takes place in an open area to the public view; (2) the minor is in the physical presence of his or her parent/legal guardian; (3) the offender is present in a public area as long as the offender is not associating with a minor, and the public area is not one frequented mainly or exclusively by minors; or (4) the appropriate court authorizes contact with the minor. N.J.A.C. 10A:71-6.1(d); N.J.A.C. 10A:71-6.12(f).   
In addition to the provisions of Code of Criminal Justice discussed above, the Legislature's intense interest in preventing recidivism by sex offenders is evident in other legislation known as the ³6Hx Offender Monitoring Pilot Project $FW´ N.J.S.A. 30:4-123.80. The legislative findings and declarations for this statutory provision establishing continuous satellite-based monitoring of certain sex offenders as part of a two-year pilot program approved by the Legislature on August 11, 2005 provide the following at N.J.S.A. 30:4-123.81:

Filed 05/25/12 Pg 7 of 18 Pg ID 56P0age 6
*7 The Legislature finds and declares:
  
a. Offenders who commit serious and violent sex crimes have demonstrated high recidivism rates and, according to some studies, are four to five times more likely to commit a new sex offense than those without such prior convictions, thereby posing an unacceptable level of risk to the community.   
b. Intensive supervision of serious and violent sex offenders is a crucial element in both the rehabilitation of the released inmate and the safety of the surrounding community.   
c. Technological solutions currently exist to provide improved supervision and behavioral control of sex offenders following their release.   
d. These solutions also provide law enforcement and correctional professionals with the new tools for electronic correlation of the constantly updated geographic location of reported crimes, to possibly link released offenders to crimes, or to exclude them from ongoing criminal investigations.   
e. Continuous 24 hours per day, seven days per week, monitoring is a valuable and reasonable requirement for those offenders who are determined to be a high risk to reoffend, were previously committed as sexually violent predators and conditionally discharged, or received or are serving a special sentence of community or parole supervision for life. A pilot program should be established to study its effectiveness.   
Megan's Law, including the CSFL requirements, and the DOC administrative regulations enacted pursuant to Megan's Law, regulate most aspects of the lives of convicted sex offenders in the interest of (1) protecting the public, and (2) fostering the rehabilitation of sex offenders. The Division of Parole has oversight, among other things, of an offender's ability to own firearms; alcohol use; location of residence; employment; ability to travel;

  

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   2:12-cv-11194-RHC-DRG Doc # 21-4
Not Reported in A.2d, 2006 WL 3797974 (N.J.Super.L.) (C ite as: 2006 W L 3797974 (N.J.Super. L .))         
  
contact with minors; curfew; association in volunteer activities; counseling; drug and alcohol, medical and/or psychological examination and so on.   
While it is clear that the Legislature intended that the lives of convicted sex offenders be subject to intense supervision and oversight by the state, nevertheless, the Legislature was also concerned that publicly available information about convicted sex offenders not be utilized to prohibit them from availing themselves of certain amenities and significant rights which are indigenous to everyday common life. N.J.S.A. 2C:7-16(c) specifically provides that:   
Except as authorized under any other provision of law, use of any of the information disclosed pursuant to this act for the purpose of applying for, obtaining, or denying any of the following, is prohibited:   
(1) Health insurance;
(2) Insurance;
(3) Loans;
(4) Credit;
(5) Education, scholarships, or fellowships;
  
(6) Benefits, privileges, or services provided by any business establishment, unless for a purpose consistent with the enhancement of public safety; or   
(7) Housing or accommodations.
  
*8 [emphasis added]
  
In addition to providing that any person who uses information about a sex offender disclosed pursuant to Megan's Law to deny a sex offender the rights set forth in the above statutory provision, is guilty of a crime of the third degree, any offender aggrieved by the misuse of information available through Megan's Law is authorized to bring a civil action in the appropriate court to request preventive

Filed 05/25/12 Pg 8 of 18 Pg ID 56P1age 7
relief. Such relief includes permanent or injunctive relief, in addition to any other remedies or procedures that may be available under other provisions of law. N.J.S.A. 2C:7-16(b) and (d).   
In Doe v. Poritz at 12-13, the Supreme Court acknowledged the difficult and complex task confronted by the Legislature in balancing the need for protection of the public, in particular women and children, against minimizing intrusion into the lives of sex offenders who have served their period of incarceration.   
The essence of our decision is that the Constitution does not prevent society from attempting to protect itself from convicted sex offenders, no matter when convicted, so long as the means of protection are reasonably designed for that purpose and only for that purpose, and not designed to punish; that the community notification provided for in these laws, given its remedial purpose, rationality, and limited scope, further assured by our opinion and judicial review, is not constitutionally vulnerable because of its inevitable impact on offenders; that despite the possible severity of that impact, sex offenders' loss of anonymity is no constitutional bar to society's attempt at self-defense. The Registration and Notification Laws are not retributive laws, but laws designed to give people a chance to protect themselves and their children. They do not represent the slightest departure from our State's or our country's fundamental belief that criminals, convicted and punished, have paid their debt to society and are not be punished further.    They represent only the conclusion that society has the right to know of their presence not in order to punish them, but in order to protect itself. The laws represent a conclusion by the Legislature that those convicted sex offenders who have successfully, or apparently successfully, been integrated into their communities, adjusted their lives so as to appear no more threatening than anyone else in the neighborhood, are entitled not to be disturbed simply because of that prior

  

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   2:12-cv-11194-RHC-DRG Doc # 21-4
Not Reported in A.2d, 2006 WL 3797974 (N.J.Super.L.) (C ite as: 2006 W L 3797974 (N.J.Super. L .))         
  
offense and conviction; but a conclusion as well, that the characteristics of some of them, and the statistical information concerning them, make it clear that despite such integration, reoffense is a realistic risk, and knowledge of their presence a realistic protection against it.    The choice the Legislature made was difficult, for at stake was the continued apparently normal lifestyle of previously-convicted sex offenders, some of whom were doing no harm and very well might never do any harm, as weighed against the potential molestation, rape, or murder by others of women and children because they simply did not know of the presence of such a person and therefore did not take the common-sense steps that might prevent such an occurrence. The Legislature chose to risk unfairness to the previously-convicted offenders rather than unfairness to the children and women who might suffer because of their ignorance, but attempted to restrict the damage that notification of the public might do to the lives of rehabilitated offenders by trying to identify those most likely to reoffend and limiting the extent of notification based on that conclusion.   
*9 The above discussion in conjunction with a brief review below of the Overlook Terrace factors as applied to the instant matter, leads to the inescapable conclusion that the Ordinance is preempted by the applicable provisions of the Code of Criminal Justice:    (1) The Ordinance conflicts with state law, not only because of conflicting policy, but because it forbids what the Legislature has permitted.
When enacting Megan's Law and the CSFL statute, the Legislature was clearly concerned with a wide variety of activities and behaviors engaged in by convicted sex offenders. The law provides parole officers with authority to approve sex offenders' residences and require them to comply with the intensive lifetime supervision conditions. The Legislature recognized that ³UHRIIHQVe is a realistic risk,´ entitling society to protect itself and its chil-

Filed 05/25/12 Pg 9 of 18 Pg ID 56P2age 8
dren through comprehensive registration, community notification laws, and CSFL which has as its purpose protection of the public and rehabilitation of the offender. Simultaneously, the Legislature confronted the reality that some convicted sex offenders are non-threatening and entitled not to be unduly disturbed purely because of prior offense and conviction.   
Of particular significance to the conflict between the Ordinance and Megan's Law is the statutory provision which prohibits anyone from using a sex offender's status as a Megan's Law registrant to deny, among other things, ³KRXVLQg or accommodations.´N.J.S.A. 2C:7-16. The Ordinance is in direct conflict with this prohibition. The Ordinance which imposes geographical prohibitions on a sex offender's residence patently violates N.J.S .A. 2C:7-16(c)(7) by prohibiting convicted sex offenders from residing in the restricted areas.   
Further, determination as to where a sex offender may reside is statutorily vested with his parole officer and not with the municipality. The Ordinance's buffer zones interfere with a parole officer's discretion to approve the most appropriate residence location for a convicted sex offender.   
For a variety of reasons related to a sex offender's individual circumstances, it is entirely possible that the most appropriate residence for a particular sex offender could be in one of the Township's buffer zones. Considering the very strong emphasis by the Legislature in permitting public access to information as to where sex offenders reside, if it had intended to limit sex offenders' residences via the imposition of prohibited ³EXIIHr zones,´ clearly it would have done so.    (2) State law was intended to be exclusive in the field.
The Ordinance specifically provides that ³,t is the intent of the Township Council to protect and ensure the health, safety and welfare of children within the Township and not to penalize registered sex RIIHQGHUV´

  

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   2:12-cv-11194-RHC-DRG Doc # 21-4
Not Reported in A.2d, 2006 WL 3797974 (N.J.Super.L.) (C ite as: 2006 W L 3797974 (N.J.Super. L .))         
  
While the Township argues that Megan's Law is nothing more than a registration statute, the Supreme Court, in Doe v. Poritz, supra at 25, emphasized that Megan's Law was crafted to protect the public through thoughtful and carefully designed legislation which specifically focused on the risk of offense posed by each offender who is required to register:   
*10 All of these provisions of the laws, the requirements for registration, the provisions for notification, the Tiers, and the many other related parts, are tied together by the statement of legislative purpose mentioned above found at the beginning of the Registration Law: to aid law enforcement in apprehending sex offenders and to enable communities to protect themselves from such offenders. Together these laws are fairly designed to achieve those purposes. The Community Notification Law, along with the Attorney General's Guidelines, provide a coherent system of notification calibrated to the degree of risk of reoffense: low risk offenders or higher will trigger notification of law enforcement who will thereby have ready access to all offenders in the area when needed either because of reported or perceived threats, or actual incidents when quick response is most important; moderate offenders and higher will trigger a notification calculated to alert organizations charged with the supervision and care of children or women, which are likely to encounter them, to their potential presence and risk; and high-risk offenders will trigger notification to that portion of the community likely to encounter them.    We are aware of the uncertainties that surround all aspects of the subject of sex offender recidivism and the effectiveness of preventive measures. Legislatures, despite uncertainty, must sometimes act to deal with public needs, basing such action on what they conclude, in a welter of conflicting opinions, to be the probable best course. Our Legislature could reasonably conclude that risk of reoffense can be fairly measured, and that know-

Filed 05/25/12 Pg 10 of 18 Pg ID 5P6a3ge 9
ledge of the presence of offenders provides increased defense against them. Given those conclusions the system devised by the L egislature is appropriately designed to achieve the laws' pur pose of protecting the public. [emphasis added]   
The Court also confronted the potential ostracism of sex offenders and the Legislature's attempt to address such concerns in Megan's Law through the establishment of the three tiers. The Court discussed the fact that the Legislature carefully addressed what the Court characterized as a ³SUHVVLQJ societal problem,´ namely, a threat to public safety:   
There is no point in predicting the extent of potential ostracism, in avoiding the conclusion that some ostracism will result, or in calming concerns by observing that the offenders themselves are responsible for their plight for having committed their crimes in the first place, for that justification would apply to any excessive punishment by government. H ere government has done all it can to confine that impact, allowing it only where clearly necessary to effect public safety, and if the Tier level selected and the methods of notification conform to the statute and its intent, as defined and limited herein, Tier Two and Tier Three public notification will be appropriately confined and applied only to those whose apparent future dangerousness requires it, and the statute will not only have survived constitutional attack, but in fact will operate as the Legislature intended. We must not prejudge society with the ogre of vigilantism or harassment, although its potential obviously calls for the vigorous steps suggested by the Attorney General, and we must not assume that those in responsible positions will violate the intent of this law by giving notification far beyond that which is authorized, and we must not assume that the press, for whatever reason, will disregard the notification confinement which this law requires. [emphasis added]    *11 We are satisfied that this statute, rationally

  

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   2:12-cv-11194-RHC-DRG Doc # 21-4
Not Reported in A.2d, 2006 WL 3797974 (N.J.Super.L.) (C ite as: 2006 W L 3797974 (N.J.Super. L .))         
  
and carefully addressed to a pressing societal problem, is not what those who drafted the Constitution had in mind as an abuse of government's power to punish. What government faced here was a difficult problem, a question of policy, and it understandably decided that public safety was more important than the potential for unfair, and even severe, impact on those who had previously committed sex offenses. Id. at 110. [emphasis added]   
In rejecting the various attacks upon Megan's
Law, the Supreme Court observed that it was sailing on ³WUXOy uncharted waters, for no other state has adopted such a far-reaching statute.´ Id. at 109. In upholding the constitutionality of the statute, the Court stated   
To rule otherwise is to find that society is unable to protect itself from sexual predators by adopting a simple remedy of informing the public of their presence. That the remedy has a potentially severe effect arises from no fault of government, or of society, but rather, from the nature of the remedy and the problem; it is an unavoidable consequence of the compelling necessity to design a remedy. Id. at 109-110.   
State v. Leahy, 381 N.J.Super. 106, 111 (App.Div.2005) decided a decade after Doe v. Poritz, reemphasized that public safety concerns about sex offender recidivism are at the heart of Megan's Law:   
In enacting Megan's Law the Legislature made the judgment that convicted sex offenders represent a risk because of a high rate of recidivism and that knowledge of their identities and whereabouts is necessary for public safety. N.J.S.A. 2C:7-1; John Doe v. Poritz, 142 N.J. 1, 93, 662 A.2d 367 (1995).
  
That the state law through (1) the enactment of extremely comprehensive legislation, (2) the development of the Attorney General guidelines, and (3) the adoption of DOC regulations regulating and

Filed 05/25/12 Pg 11 of 18 Pg ID 5P6a4ge 10
monitoring sex offenders' post-conviction behaviors (including location of the sex offender's residence through parole officer approval) is exclusive in the field both expressly and impliedly, is patently clear.    (3) The subject matter reflects a need for uniformity.
The Legislature has recognized that in protecting the public from sex offender recidivism, uniformity regarding the post conviction treatment of convicted sex offenders is essential. State law uniformly regulates sex offenders' lives, taking into account their ³WLHU´ rating and the unique factors involved in each offender's life and employment circumstances. N.J.S.A. 2C:7-8(d) requires that the Attorney General develop procedures ³Wo promote uniform application of the notification guidelines required by this VHFWLRQ´   
In the matter of Summer v. Township of Teaneck, 53 N.J. 548, 552-553 (1968), the Supreme Court addressed the issue of ³XQLIRUm WUHDWPHQW´ noting that while N.J.S.A. 40:48-2 is to be construed liberally in favor of local government, nevertheless, there are implied limitations upon what the court described as this ³SHUYDVLYe JUDQW´   
*12 As said in Wagner v. Mayor and Municipal Council of City of Newark, 24 N.J. 467, 478 (1957), the grant ³UHODWHs to matters of local concern which may be determined to be necessary and proper for the good and welfare of local inhabitants, and not to those matters involving state policy or in the realm of affairs of general public interest and applicability.´ So, for example, a municipality cannot legislate upon the subject of wills or title to real property. The needs with respect to those matters do not vary locally in their nature or intensity. Municipal action would not be useful, and indeed diverse local decisions could be mischievous and even intolerable. Hence the municipality may not legislate upon an aspect of a subject ³LQKHUHQWOy in need of uniform treatment.´ In re Public Service Election and Gas Co., 35 N.J. 358, 371 (1961).

  

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   2:12-cv-11194-RHC-DRG Doc # 21-4
Not Reported in A.2d, 2006 WL 3797974 (N.J.Super.L.) (C ite as: 2006 W L 3797974 (N.J.Super. L .))         
  
It is difficult to take issue with the observations of plaintiffs at pages 16-17 of their brief:   
Ordinances like the Lower Township ordinance, multiplied with variations across the state, have created an unworkable, confusing and inequitable patchwork of divergent restrictions on where sex offenders can or cannot live. Proliferation of local ordinances has also created the prospect of an unseemly ³UDFH´among municipalities to exclude sex offenders, so that certain communities or areas would become ³VHx offender JKHWWRHV´    Even worse, were the matter left to local legislation, much or all of the state could become off limits to sex offenders in a piecemeal, uncoordinated fashion. Moreover, and particularly in smaller municipalities, ordinances like Ordinance 279-1 could easily result in complete banishment of sex offenders from a particular municipality.    Such consequences, when accomplished randomly and without statewide consideration, would be intolerable.   
The Township is correct in observing that the unique demographics within each municipality, including municipal land area and population density, preclude uniform statewide treatment of geographical sex offender residency prohibitions. However, the Legislature clearly recognized that concerns about sex offender recidivism and the implications for public safety is an issue of statewide importance requiring uniform treatment, specifically, uniform treatment through regulating the degree of risk each offender poses and providing for individualized supervision, including approval of living arrangements. The imposition of prohibited buffer zones within the Township which are applicable to all sex offenders regardless of their likelihood to reoffend flies in the face of the uniform treatment of sex offenders, based upon individualized assessment of the risk of recidivism.    (4) The state scheme is so pervasive and comprehensive that it precludes coexistence of municipal

Filed 05/25/12 Pg 12 of 18 Pg ID 5P6a5ge 11
regulations; and (5) The Ordinance stands as an obstacle to the accomplishment and execution of the full purposes of the objectives of the Legislature.
*13 These factors have, for the most part, been addressed. However, at the risk of some redundancy, state law governing the behavior and activities of registered sex offenders is pervasive, comprehensive, and has several purposes: (1) to protect public safety by providing notification to the public as to location of sex offenders; (2) to minimize or eliminate recidivism by sex offenders; (3) to permit sex offenders to conduct their daily lives without unnecessary ostracism or retaliation due to their sex offender registrant status; and (4) to provide an opportunity for rehabilitation and reintegration into society.   
Limitation by a municipality as to where sex offenders may reside within that municipality clearly collides with a parole officer's authority to determine the most appropriate place of residence for a sex offender. Further, such limitations directly collide with the intent of the Legislature in providing that a sex offender may not be denied housing or accommodations due to his status as a Megan's Law registrant.    b. Does the Ordinance offend substantive due process because it is overbroad and unnecessarily impairs plaintiffs' rights?
N.J. Const. art. I, Paragraph 1 provides that
  
All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.   
In the matter of Caviglia v. Royal Tours of America, 178 N.J. 460, 471-473 (2004), the Supreme Court stated the following:   
The Fourteenth Amendment to the United States Constitution guarantees that no state may

  

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   2:12-cv-11194-RHC-DRG Doc # 21-4
Not Reported in A.2d, 2006 WL 3797974 (N.J.Super.L.) (C ite as: 2006 W L 3797974 (N.J.Super. L .))         
  
³GHSULYe any person of life, liberty, or property,
without due process of law; nor deny to any per-
son within its jurisdiction the equal protection of the laws.´ N.J. Const. art. I, § 1.    Although Article I, Paragraph 1 does not contain
the express terms ³HTXDl protection´ or ³GXe pro-
cess,´ we have construed the expansive language
of that provision as guaranteeing those fundamental constitutional rights. Greenberg v. Kimmelman, 99 N.J. 552, 568, 494 A.2d 294 (1985); see also Sojourner A. v. New Jersey Dep't of Human Servs., 177 N.J. 318, 332, 828 A.2 d 306
(2003). Under both constitutions, a statute is in-
valid on substantive due process grounds if it
³VHHNs to promote [a] state interest by impermiss-
ible means,´ and is invalid on equal protection
grounds when it does not apply ³HYHQKDQGHGO\´ to similarly situated people. Greenberg, supra, 99 N.J. at 562, 494 A.2d 294. Analyses under equal
protection and due process ³SURFHHG[ ] along parallel lines,´ and ³RYHUODS´ to some degree. Id. at 569, 494 A.2d 294.
  
A state statute generally does not run afoul of
federal substantive due process protections if the
statute ³UHDVRQDEOy relates to a legitimate legislat-
ive purpose and is not arbitrary or discriminatory.´ Id. at 563, 494 A.2d 294 (citing Nebbia v. New York, 291 U.S. 502, 537, 54 S.Ct. 505, 516, 78 L. Ed. 940, 957 (1934)). If the statute is foun-
ded on some conceivable rational basis to pro-
mote a public purpose, it will survive constitutional scrutiny. Ibid. A more exacting standard
applies to a statute that infringes on a fundamental right. See Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 728, 35 L.Ed.2d 147, 178 (1973) (requiring compelling state interest); Moore v. East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1936, 52 L.Ed.2d 531 (1977).
  
*14 When evaluating substantive due process and
equal protection challenges under the New Jersey
Constitution, this Court applies a balancing test. Sojourner, supra, 177 N.J. at 332, 828 A.2d 306; Greenberg, supra, at 99 N.J. at 567, 494 A.2d

Filed 05/25/12 Pg 13 of 18 Pg ID 5P6a6ge 12
294; Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 107 N.J. 355, 368, 526 A.2d 1055 (1987). That test weighs the ³QDWXUe of the affected right, the extent to which the governmental restriction intrudes upon it, and the public need for the restriction.´ G reenberg, supra, 107 N.J. at 368, 526 A.2d 1055. We require that the means selected by the Legislature ³EHDr a real and substantial relationship to a permissible legislative purpose.´ Taxpayers Ass'n of Weymouth Tp. v. Weymouth Tp., 80 N.J. 6, 44, 364 A.2d 1016 (1976), cert. denied, 430 U.S. 977, 97 S.Ct . 1672, 52 L.Ed.2d 373 (1977) (citing Nebbia, supra, 291 U.S. at 525, 54 S.Ct. at 505, 78 L.Ed. at 950); see also Katobimar Realty Co. v. Webster, 20 N.J. 114, 123, 118, A.2d 824 (1955).   
Hence, in applying the balancing test in reviewing and analyzing a substantive due process challenge under the state Constitution, the court must weigh ³WKe nature of affected right, the extent to which the governmental restriction intrudes upon it, and the public need for the restriction.´ Visiting Homemaker Service of Hudson County v. Hudson Cty. Bd. of F reeholders, 380 N.J. Super. 596, 610 (App.Div.2005), quoting G reenberg, 99 N.J. at 567.   
That the Ordinance violates substantive due process and must be invalidated does not require elaborate discussion. Clearly, the state has a legitimate interest in protecting the public, in particular women and children, from recidivism by sex offenders. In upholding the constitutionality of Megan's Law, the Supreme Court referred to the legislation as a ³IDU-reaching statute.´ Doe v. Poritz at 109. The Court further recognized that the remedies provided for by Megan's Law will have a ³SRWHQWLDOOy severe effect´on convicted sex offenders. Nevertheless, such result was deemed ³Dn unavoidable consequence of the compelling necessity to design a remedy.´ Ibid. The ³SRWHQWLDOOy severe effect´identified by the court, of course, did not include the intrusive regulation by the Council in prohibiting all Megan's Law registrants (regardless of

  

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   2:12-cv-11194-RHC-DRG Doc # 21-4
Not Reported in A.2d, 2006 WL 3797974 (N.J.Super.L.) (C ite as: 2006 W L 3797974 (N.J.Super. L .))         
  
the risk of offense) from residing in certain areas of the Township. That the residency prohibition in the Ordinance is more draconian than the ³SRWHQWLDOO\ severe effect´of the Megan's Law remedies is quite obvious.   
Notwithstanding the valid, comprehensive, and potentially ³VHYHUH´ steps taken by the Legislature in protecting the public from convicted sex offenders through the enactment of Megan's Law, the Ordinance, in a purported attempt to protect the public, regulates the location of sex offenders' residences in a manner that is overly broad. It fails to balance the nature of the rights affected and the extreme intrusion upon those rights by the Ordinance, with the public need for the prohibitions set forth in the Ordinance.   
*15 The Ordinance does not differentiate the various tiers of offenders, or attempt to assess the actual risk posed by a particular offender (critical factors considered by the Doe Court in upholding Megan's Law). Rather, the Ordinance paints all sex offenders with the same broad brush, namely, that they are all equally likely to reoffend, but are less likely to do so if they are ³JHRJUDSKLFDOO\´ limited with regard to residence and loitering.   
The geographical restrictions on where the plaintiff (or any other sex offenders for that matter) may reside or ³ORLWHU´ substantially intrude upon significant family matters involving private and personal choices about how to raise and care for children, and decision-making about where to reside. The Ordinance restricts Elwell, a low risk offender, from accompanying his children to the school bus stop, going into a school or to a public park with his children, for fear of being charged with ³ORLWHULQJ´ because he is a convicted sex offender. The rights affected are significant, and are unnecessarily burdened by the Ordinance.   
As noted in Doe v. Poritz, supra, at 110, in upholding the constitutionality of Megan's Law:   
Here government has done all it can to confine

Filed 05/25/12 Pg 14 of 18 Pg ID 5P6a7ge 13
that impact [potential for ostracism], allowing it only where clearly necessary to effect public safety, and if the Tier level selected and the methods of notification conform to the statute and its intent, as defined and limited herein, Tier Two and Tier Three public notification will be appropriately confined and applied only to those whose apparent future dangerousness requires it, and the statute will not only have survived constitutional attack, but in fact will operate as the Legislature intended.    c. Does the Ordinance constitute punishment and therefore violate both the ex post facto and double jeopardy clauses of the state Constitution?
The ex post facto clause of the state Constitution, N.J. Const. art. IV, § 7, ¶ 3 provides that ³7KH Legislature shall not pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or depriving a party of any remedy for enforcing a contract that existed when a contract was made.´ Hence, the state is prohibited from enacting retroactive punishment for prior offenses or for an act that was not punishable at the time it was committed. State v. Coruzzi, 95 N.J. 557, 578 (1984). The ex post facto clause is applicable to municipal ordinances as well as state statutes. State v. C.I.B. Int'l., 83 N.J. 262, 270 (1980).   
The double jeopardy clause, N.J. Const., art. I, ¶ 11, provides that ³Qo person shall, after acquittal be tried for the same offense.´ Hence, in reviewing plaintiffs' challenge under the ex post facto and double jeopardy clauses of the state Constitution, the court must determine whether the Ordinance is so punitive either in its purpose or effect, that while it may have been intended as a civil remedy, in reality, it is tantamount to a criminal penalty. Auge v. NJ Dept. of Corrections, 327 N.J.Super. 256, 262-263 (App.Div.1999).
   *16 In Doe v. Poritz, supra at 46, the Supreme
Court addressed whether Megan's Law constituted ³SXQLVKPHQW´   
... The determination of punishment has ordinar-

  

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   2:12-cv-11194-RHC-DRG Doc # 21-4
Not Reported in A.2d, 2006 WL 3797974 (N.J.Super.L.) (C ite as: 2006 W L 3797974 (N.J.Super. L .))         
  
ily consisted of several components. An initial inquiry is whether the legislative intent was regulatory or punitive: if the latter, that generally is the end of the inquiry, for punishment results; if the former, the inquiry changes to whether the impact, despite the legislative intent to regulate, is in fact punitive, usually analyzed in terms of the accepted goals of punishment, retribution and deterrence. Despite some ambivalent language, a punitive impact-one that effects retribution or accomplishes deterrence-renders the law or the specific provision of the law that is attacked, punishment, but only if the sole explanation for that impact is a punitive intent. In other words, the law is characterized as regulatory in accordance with the legislative intent even if there is some punitive impact, if that impact is simply an inevitable consequence of the regulatory provisions themselves. The law is characterized as punitive only if the punitive impact comes from aspects of the law unnecessary to accomplish its regulatory purposes-that is, if the law is ³H[FHVVLYH´the excess consisting of provisions that cannot be justified as regulatory, that result is a punitive impact, and that, therefore can only be explained as evidencing a punitive intent.   
The Ordinance specifically states that ³,t is the continuing intention of the Township Council to protect and ensure the health, safety and welfare of children within the Township and not to penalize registered sex offenders ... ³ [emphasis added] Such disclaimer, however, does not end the inquiry.   
The plaintiffs have provided as part of the record in this matter a guest column published in The Press of Atlantic City written by a Councilman who voted in favor of the Ordinance. The column stated among other things:   
And if Elwell is representative of a Tier 1 offender, then we made the right decision to include them in our ordinance. As a teacher myself, I think we should reserve the deepest dungeons in the castle for those who take advantage of their authority and betray our students. [emphasis

Filed 05/25/12 Pg 15 of 18 Pg ID 5P6a8ge 14
added]
  
While the above language from the guest column suggests that at least one Councilman may have intended to punish sex offenders, including Tier One sex offenders, through the enactment of this Ordinance, this court is reluctant to conclude based upon this newspaper column alone, that the intent of the Ordinance was punitive. However, a close examination of the specific provisions of the Ordinance does indeed suggest that the intent was punitive.   
First, the Ordinance constitutes an express prohibition on sex offender residency in particular geographic areas of the Township, as opposed to registration and/or notification requirements. The inclusion of a grandfather clause to exclude from the requirements of the Ordinance sex offenders who established a residence within a prohibited area prior to the effective date of this section, suggests that the Council recognized the rather draconian measures undertaken when imposing geographical prohibitions.   
*17 If a sex offender resides within a prohibited area, there is no grace period within which the offender is permitted to relocate prior to being subjected to the Ordinance's monetary/incarceration/community service sanctions. Such penalties, which include the possibility of incarceration, equate to traditional quasi criminal consequences providing a strong indication that Council intended the Ordinance to be punitive. Hence, if Elwell purchases a home in the Township in a non-prohibited area, he could be charged with a violation of the Ordinance, if a new bus stop is located within 25 feet of his home subsequent to his purchase of the property and he does not immediately relocate.   
While all indications are that the intent of the Council in enacting the Ordinance constituted a punitive measure, the effect of the Ordinance is clearly punitive. The Ordinance imposes restrictions on the residency and movement only of convicted sex offenders, as opposed to other criminals

  

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   2:12-cv-11194-RHC-DRG Doc # 21-4
Not Reported in A.2d, 2006 WL 3797974 (N.J.Super.L.) (C ite as: 2006 W L 3797974 (N.J.Super. L .))         
  
who have committed serious offenses. The Ordinance does not take into account an individual sex offender's propensity to reoffend. It assumes that all sex offenders pose the same degree of risk.   
The Ordinance, in the guise of protecting the public, does no such thing. By way of brief example, a convicted Tier 1 (low risk) sex offender may not ³ORLWHU´within 25 feet of a school bus stop while waiting to place his school age child safely on the bus, yet a Tier Three (highest risk) sex offender may ³ORLWHU´25.5 feet from a school bus stop without violating the Ordinance. Elwell may not reside within 500 feet of a playground, yet a Tier Three sex offender may reside within 501 feet of the same playground and not be charged with violating the Ordinance.   
In contrast to Megan's Law which survived an ex post facto challenge, the Ordinance is not regulatory and remedial. Its sole purpose is deterrence, to keep sex offenders away from certain areas of the Township. It limits residency and movement of all Megan's Law registrants without distinction as to the sex offender's tier ranking, nature of offense, or whether the offender's victim was an adult or a minor.   
It is clear that the Ordinance violates the ex post facto and double jeopardy clauses of the State Constitution, and therefore must be invalidated.    d. Is the ban on loitering ultra vires and void for vagueness?
In State v. Crawley, 90 N.J. 241 (1982), the City of Newark appealed a ruling of the Superior Court Law Division that a municipal loitering ordinance was preempted by the Code of Criminal Justice. In upholding the judgment of the Superior Court, the Supreme Court, relying upon N.J.S.A. 2C:1-5(d) stated at 252:   
To summarize, the basic purpose of the New Jersey Code of Criminal Justice is to create a comprehensive system of criminal law. The legislative history does not suggest that the Legislature

Filed 05/25/12 Pg 16 of 18 Pg ID 5P6a9ge 15
intended to leave this area of criminal law to a patchwork of municipal regulations. The exclusion of a loitering provision from the Code expressed state policy not to penalize such conduct.   
*18 The Township has no authority to regulate loitering. The fact that the Ordinance is directed only at sex offenders does not render it valid. The Ordinance does not include a mens rea requirement. In other words, sex offenders, and only sex offenders, may not loiter in the prohibited areas regardless of their purpose in doing so. This is in contrast to existing anti-loitering statutes which require an actual intent to engage in either criminal or quasicriminal conduct while loitering. See N.J.S.A. 2C:33-2.1 (loitering for purpose of obtaining or distributing controlled dangerous substances); N.J.S.A. 2C:34-1.1 (loitering for purpose of engaging in or promoting prostitution); N.J.S.A. 19:34-6 (loitering at a polling place with purpose to obstruct or interfere with a voter). The Ordinance is ultra vires.   
In addition to being ultra vires, the Ordinance is unconstitutionally vague, and therefore, void. In State v. Golin, 363 N.J.Super. 474, 481-482 (App.Div.2003), the Appellate Division underscored the fact that municipal ordinances are presumed to be valid.   
However,
  
A penal ordinance offends due process if it does not provide legally fixed standards and adequate guidelines for police and others who enforce the laws. Betancourt v. Town of W. New York, supra, 338 N.J.Super. at 422, 769 A.2d 1065 (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 170, 92 S.Ct. 839, 847, 31 L. Ed.2d 110, 120 (1972)); Town Tobacconist v. Kimmelman, 94 N.J. 85, 118, 462 A.2d 573 (1983)). ³9DJXe language and inadequate standards permit the subjective and therefore impermissible enforcement of penal ordinances by the SROLFH´ Betancourt v. Town of W. New York, supra, 338 N.J.Super. at 422, 769 A.2d 1065 (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92

  

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   2:12-cv-11194-RHC-DRG Doc # 21-4
Not Reported in A.2d, 2006 WL 3797974 (N.J.Super.L.) (C ite as: 2006 W L 3797974 (N.J.Super. L .))         
  
S.Ct. 2294, 2299, 33 L. Ed.2d 222, 227-28 (1972)
). To withstand a void-for-vagueness challenge, a
penal ordinance must define the offense ³ZLWK
sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory enforcement.´ Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L. Ed.2d 903, 909 (1983).    Id. at 482-483.
   In State v. Hoffman, 149 N.J. 564 (1997), the
Supreme Court addressed whether N.J.S.A. 2C:33-4
(a) (a portion of the harassment statute) was uncon-
stitutionally vague. The court stated at 581-582:   
A statute that is vague creates a denial of due
process because of a failure to provide notice and
warning to an individual that his or her conduct
could subject that individual to criminal or quasicriminal prosecution. Screws v. United States, 325 U.S. 91, 102-02, 656 S.Ct. 1031, 1035, 89 L.Ed. 1495, 1503 (1945). This Court has stated
that   
³>F@OHDr and comprehensible legislation is a fun-
damental prerequisite of due process of law, es-
pecially where criminal responsibility is in-
volved. Vague laws are unconstitutional even if
they fail to touch constitutionally protected conduct, because unclear or incomprehensible legislation places both citizens and law enforcement officials in an untenable position. Vague laws de-
prive citizens of adequate notice of proscribed
conduct, and fail to provide officials with
guidelines sufficient to prevent arbitrary and er-
ratic enforcement.   
*19 [ State v. Afanador, 134 N.J. 162, 170, 631
A.2d 946 (1993) (alteration in original) (quoting Town Tobacconist v. Kimmelman, 94 N.J. 85,
118, 462 A.2d 573 (1983)) (emphasis added.) ]
  
The Ordinance does not provide clear notice to
a sex offender as to what behavior is permitted and

Filed 05/25/12 Pg 17 of 18 Pg ID 5P7a0ge 16
what behavior is prohibited. Section 279-2 of the Ordinance defines loitering as:
  
Whether on foot or in a motor vehicle, a person who wanders or who remains idle in essentially one location, sits, lounges, loafs, walks about aimlessly, or repeatedly frequents the same location, or repeatedly circles in a motor vehicle.   
Pursuant to the definition of loitering, it is difficult to determine objectively, how many visits within 25 feet of a school bus stop by a sex offender constitutes ³UHSHDWHG´ visits and over what period of time. Or, what is meant by ³ZDONLQg about DLPOHVVO\´, or ³ORDILQJ´, or ³ORXQJLQJ´, or ³UHPDLQLQg LGOH´? Does the term ³UHPDLQLQg LGOH´ at the school bus stop apply to Elwell who may be standing there with his child until the bus arrives?   
In Betancourt v. Town of West New York, 338 N.J.Super. 415, 424 (App.Div.2001), the Appellate Division held that a juvenile curfew ordinance was unconstitutionally vague:   
... The ordinance's language does not give a clear standard as to what conduct is forbidden. This, in turn, gives the police officer on the street broad discretion to decide which activities and which juveniles fall within the ordinance's exceptions.   
Enforcement of the loitering provision in the instant Ordinance lies with the Township Police Department. The anti-loitering provision targets only Megan's Law registrants and vests unacceptably broad discretion with law enforcement to determine whether a sex offender has ³ORLWHUHG´ within 25 feet of a school bus stop, let alone 500 feet of a school, park, playground, recreation area or day care facility.   
In the matter of State v. Caez, 81 N.J.Super. 318, 319 (App.Div.1963) when reversing a conviction of a defendant who allegedly violated the City of Hackensack's loitering ordinance, the Appellate Division addressed concerns about arbitrary enforcement of ordinances which restrict a person's

  

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   2:12-cv-11194-RHC-DRG Doc # 21-4
Not Reported in A.2d, 2006 WL 3797974 (N.J.Super.L.) (C ite as: 2006 W L 3797974 (N.J.Super. L .))         
  
ability to move about or stand still:
  
We begin with the fundamental proposition that
no ordinance may unreasonably or unnecessarily
interfere with a person's freedom, whether it be to move about or to stand still. Territory of Hawaii v. Anduha, 48 F . 2d 171 (9 Cir. 1931); City of St. Louis v. Gloner, 210 Mo. 502, 109 S.W. 30, 15 L.R. A., N. S., 973 (Sup.Ct. 1908); Pinkerton v. Verberg, 78 Mich. 573, 44 N.W. 579, 7 L.R.A. 507 (Sup.Ct. 1989). An ordinance which proposes
to restrict such freedom must contain standards which make it reasonable and prevent arbitrary
enforcement. ³,t is offensive to fundamental con-
cepts of justice and violative of due process of
law to impose sanctions for violations of laws
whose language is doubtful, vague and uncertain.´ Maplewood v. Tannenhaus, 64 N.J.Super.
80, 89 (App.Div.1960). Penal laws must be clear enough so that ³. all men subject to their penal-
ties may know what acts it is their duty to avoid
... Before a man can be punished, his case must be plainly and unmistakably within the statute. State v. Gaynor, 119 N.J.L. 582, 584 (E. & A.
1937).
   *20 In Camarco v. City of Orange, 61 N.J. 463
(1972), the New Jersey Supreme Court affirmed the Appellate Division's decision in Camarco v. City of Orange, 116 N.J.Super. 531 (1971) in a case in-
volving a constitutional challenge to a loitering or-
dinance in the City of Orange. In so affirming, the Court stated:   
The Appellate Division readily recognized that if
the ordinance broadly proscribed loitering or idling without more it would be unconstitutional. 116 N.J.Super. at 534; see State v. Caez, 81 N.J.Super. 315 (App.Div.1963); People v. Diaz, 4 N.Y.S. 2 d 313, 151 N.E.2d 871 (1958; cf. Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L. Ed.2d 214 (1971). On the other hand it recog-
nized with equal readiness that if the ordinance
simply proscribed loitering which obstructs, mo-
lests or interferes with others lawfully in public places or which threatens an immediate breach of

Filed 05/25/12 Pg 18 of 18 Pg ID 5P7a1ge 17
the peace it could withstand constitutional attack.
  
The City of Orange loitering ordinance included a definition of loitering (somewhat similar to the definition in the Township's Ordinance), but thereafter articulated specifically what kinds of loitering were prohibited, e.g., obstructing the passage of pedestrians; obstructing, molesting or interfering with any person lawfully in a public place. On the other hand, the Township's Ordinance simply prohibits convicted sex offenders from loitering in specific locations which are readily accessible to other members of the public, without proscribing what specific types of loitering are prohibited.   
That the anti-loitering provision of the Ordinance which singles only sex offenders is vague and uncertain, is not subject to debate.   
Therefore, I conclude that the loitering provision of the Ordinance is invalid as being void for vagueness.    IV. C ONCLUSION
Plaintiffs' request to invalidate the Ordinances on all grounds articulated is hereby granted.   
This decision will be posted on www.njcourtsonline.com. An order will be prepared by the court.    N.J.Super.L.,2006. Elwell v. Township of Lower Not Reported in A.2d, 2006 WL 3797974 (N.J.Super.L.)    END OF DOCUMENT

  

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2:12-cv-11194-RHC-DRG Doc # 21-5 Filed 05/25/12 Pg 1 of 44 Pg ID 572
EXHIBIT 18
Whitaker v. Perdue, 4:06-cv-0140, Order (N.D. Georgia, March 30, 2007

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F05ile/2d50/132/30P/2g0207of 44PagPeg1IDof54733
           
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

  

WENDY WHITAKER, et al.,

:

:

Plaintiffs,

:

: CIVIL ACTION NO.

vs.

:

: 4:06-­CV-­0140-­CC

SONNY PERDUE, et al.,

:

:

Defendants.

:

  

  

ORDER

  

This matter is presently before the Court on 'HIHQGDQWV· Motion to Dismiss

in Lieu of Answer [Doc. No. 34], 'HIHQGDQWV· Motion to Dismiss Amended

Complaint [Doc. No. 55], and 'HIHQGDQWV· Motion to Dismiss 3ODLQWLIIV· Second

Amended Complaint [Doc. No. 78]. The Court DENIES 'HIHQGDQWV· Motion to

Dismiss in Lieu of Answer and 'HIHQGDQWV· Motion to Dismiss Amended

Complaint as moot, insofar as Plaintiffs amended their complaint after the filing

of those motions.1 The Court will consider only 'HIHQGDQWV· Motion to Dismiss

3ODLQWLIIV· Second Amended Complaint in this Order.

I. BACKGROUND2

On June 20, 2006, Plaintiffs Wendy Whitaker, Joseph Linaweaver, Janet

Jenkins Allison, James Victor Wilson, Jeffery York, Dewayne Owens, Al Reginald

Marks, Lori Sue Collins, and Reverend Joel Jones filed the instant class action
     
   1 The Court notes, however, that Defendants· Motion to Dismiss 3ODLQWLIIV· Second
Amended Complaint incorporates by reference all material contained in the previous
motions to dismiss. The Court will accordingly refer to the previous motions to dismiss in
this Order, as appropriate.   
2 Insofar as this matter is before the Court on 'HIHQGDQWV· motion to dismiss, the
Court has accepted the factual allegations in 3ODLQWLIIV· Second Amended Complaint as true
for the purposes of this Order.

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F05ile/2d50/132/30P/2g0307of 44PagPeg2IDof54734
           
complaint challenging certain provisions of Act No. 571 (HB 1059), Ga. Laws
  
2006, codified at O.C.G.A. § 42-­1-­15 (hereinafter the ´$FWµ The Act provides, in
pertinent part, that no individual required to register as a sex offender ´VKDOO
reside or loiter within 1,000 feet of any child care facility, church, school, or area
where minors FRQJUHJDWHµ § 42-­1-­15(a). The Act defines ´DUHDV where minors
FRQJUHJDWHµ as including ´VFKRRO bus VWRSVµ § 42-­1-­12(a)(3), and ´VFKRRO bus
VWRSVµ are defined as school bus stops ´DV designated by local school boards of
education or by a private VFKRROµ § 42-­1-­12(a)(19). In addition, the Act provides
that no individual required to register as a sex offender ´VKDOO be employed by
any child care facility, school, church, or by any business entity that is located
within 1,000 feet of a child care facility, a school, or a FKXUFKµ § 42-­1-­15(b)(1).
The Act was scheduled to take effect on July 1, 2006. On June 22, 2006,
Plaintiffs filed a Motion for Temporary Restraining Order, which this Court
granted in part by oral ruling on June 26, 2006, and by written Order entered on
June 27, 2006 [Doc. No. 16]. By this Order, the Court temporarily restrained
Defendants3 from taking any action to enforce the provision of the Act that
prohibits registered sex offenders from living within 1,000 feet of a school bus
stop (hereinafter the ´VFKRRO bus stop SURYLVLRQµ The Court scheduled a
hearing on 3ODLQWLIIV· Motion for Preliminary Injunction and instructed Plaintiffs
to produce information regarding the number and location of school bus stops
  
        
3 The original Defendants in this case were Sonny Perdue, in his official capacity as Governor of the State of Georgia;; Thurbert Baker, in his official capacity as Attorney General of the State of Georgia;; Scot Dean, in his official capacity as Chief of Probation, Cedartown, Polk County, Georgia;; and Robert Sparks, in his official capacity as Sheriff of Polk County. Defendants Perdue and Baker have been the only Defendants to address the substantive constitutional challenges to the Act. Subsequent references WR´'HIHQGDQWVµ DQG´SDUWLHVµLQWKLV2UGHULQFOXGHRQO\'HIHQGDQWV Perdue and Baker, unless otherwise noted.   
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before the hearing. On June 29, 2006, the Court provisionally certified, for the
duration of the temporary restraining order, a class of Plaintiffs consisting of all
persons who registered as sex offenders on or before July 1, 2006, and who reside
within 1,000 feet of a currently-­designated school bus stop or a school bus stop so
designated in the future.
On July 11, 2006, the Court held an evidentiary hearing on 3ODLQWLIIV·
Motion for Preliminary Injunction. That same day, the Court entered an Order
extending the temporary restraining order for an additional ten days or until the
Court ruled on the Motion for Preliminary Injunction [Doc. No. 38]. After
hearing evidence and oral argument at the hearing, the Court ordered the parties
to submit briefing on the proper interpretation of the phrase ´VFKRRO bus VWRSµ as
used in the Act. The parties complied with the &RXUW·V request, and on July 25,
2006, the Court entered an Order denying without prejudice 3ODLQWLIIV· Motion for
Preliminary Injunction on the grounds that the motion was premature, insofar as
the evidence failed to establish that any school bus stop had been designated by
local school boards of education, as provided in the Act. The next day, on July
26, 2006, Plaintiffs filed a Motion for Temporary Restraining Order [Doc. No. 58],
alleging that the District Attorney of the Augusta Judicial Circuit, which
encompasses Burke, Columbia, and Richmond counties, had announced an
intention to enforce the school bus stop provision and that the Columbia County
local school board of education had officially designated school bus stops. That
same day, Plaintiffs filed a motion to amend their complaint to assert claims
against the Sheriffs of Burke, Columbia, and Richmond counties [Doc. No. 59],
which the Court granted on July 27, 2006. On July 28, 2006, the Court held a
hearing to consider 3ODLQWLIIV· Motion for Temporary Restraining Order and also heard argument on 3ODLQWLIIV· Motion for Class Certification [Doc. No. 46]. At
  
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that hearing, the Columbia County Sheriff, Clay Whittle, indicated his willingness
to consent to an injunction regarding the enforcement of the school bus stop
provision while the Court considered the constitutionality of that provision. On
July 28, 2006, the Court entered an Order denying 3ODLQWLIIV· Motion for
Temporary Restraining Order as to the Sheriffs of Burke and Richmond counties,
insofar as it appeared that the local school boards of education in those counties
had not designated school bus stops, and directing Plaintiffs and the Sheriff of
Columbia County to file a consent order reflecting the agreement reached at the
hearing. That same day, the Court entered an Order certifying, for the duration of
this litigation, a Plaintiff class consisting of all persons who are registered, who
are required to register, or who in the future
will be required to register as sex offenders under Georgia law. On August 24,
  
2006, this Court entered an Order certifying, for the duration of this litigation, a
Defendant class consisting of all Sheriffs in the State of Georgia and naming the
Sheriff of Columbia County as the class representative.
Plaintiffs estimate that there are approximately 11,000 registered sex
offenders in Georgia, 9,000 of whom live in the community. (Second Am. Compl.
[Doc. No. 75], ¶ 2.) Plaintiffs Wendy Whitaker, Joseph Linaweaver, Janet Jenkins
Allison, James Victor Wilson, Jeffery York, Dewayne Owens, Al Reginald Marks,
and Lori Sue Collins are registered sex offenders. When Ms. Whitaker was 17,
she engaged in a single consensual act of oral sex with a 15-­year-­old male while
on school property;; she pled guilty to charges of sodomy and received a sentence
of 5 years probation. (Id. at ¶ 10.) Plaintiff Joseph Linaweaver is on the sex
offender registry because, when he was 16, he participated in single consensual
act of oral sex with a 14-­year-­old girl;; he pled guilty to sodomy and received a
sentence of 5 years probation. (Id. at ¶ 15.) Plaintiff Janet Allison was convicted
  
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of being party to a crime of statutory rape and party to a crime of child
molestation after her 15-­year-­old daughter became pregnant and Ms. Allison
allowed her GDXJKWHU·V boyfriend (and future husband) to move into their
household;; she received a sentence of 15 years probation. (Id. at ¶ 18.) Plaintiff
James Wilson pled guilty to sexual abuse in the first degree for inappropriately
touching an adult female college friend while highly intoxicated at a freshman
party;; he was sentenced to 5 years probation. (Id. at ¶ 22.) Plaintiff Jeffery York
pled guilty to one count of sodomy for engaging in a consensual act of oral sex
with a 15-­year-­old male when he was 17 years old;; he was sentenced to 5 years
probation. (Id. at ¶ 26.) Plaintiff Dewayne Owens was convicted of incest when
he was 13 years old, for allegedly having sex with his sister;; he was found to have
violated the terms of his probation in 2004 and was incarcerated with a tentative
parole date of December 2006, assuming that he provided a home plan to the
Board of Pardons and Paroles. (Id. at ¶¶ 29-­30.)4 Plaintiff Al Marks pled guilty
to child molestation after being charged with hand-­to-­genital and mouth-­to-­
  
genital sexual contact with a 7-­year-­old male son of a family friend when he was
  
14 years old;; he was sentenced to probation. (Id. at ¶ 32.) Plaintiff Lori Collins
was convicted of statutory rape for having consensual sex with a 15-­year-­old
male when she was 39 years old;; she served three years in prison and since her
release has been living in a faith-­based halfway home. (Id. at ¶¶ 37-­38.)
Plaintiff alleges that the Act will force thousands of registered sex
offenders from their homes, jobs, and churches. (Id. at ¶ 1.) Ms. Whitaker,
whose current residence is within 1,000 feet of where a school bus stops to pick
up a child, has not been able to find another affordable residence in the Augusta
  
     
4 The Court has no information regarding whether Mr. Owens was in fact paroled in December 2006.   
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area (which is where her husband works) that is not within 1,000 feet of a school
bus stop. (Id. at ¶¶ 12-­13.) Mr. Linaweaver was notified of the Act by the
Columbia County Sheriff on June 1, 2006;; he has been unable to find anywhere in
the Augusta area to meet the $FW·V requirements and has not found employment
that complies with the $FW·V restrictions. (Id. at ¶ 16.) Ms. Allison was informed
by an officer with the Lumpkin County 6KHULII·V Office that her residence is
within 1,000 feet of a school bus stop and that she must leave her home. (Id. at ¶
19.) Ms. Allison and her family searched for a new home in White, Pickens,
Dawson, Lumpkin, and Gilmer counties without success. (Id.) Mr. Wilson is the
co-­owner of a home that is within 1,000 feet of a school bus stop, and his place of
employment is within 1,000 feet of a church. (Id. at ¶ 22.) Mr. Wilson searched
the metro-­Atlanta area for a residence that complies with the $FW·V provisions;;
Mr. Wilson found only a motel in an industrial area that may meet the $FW·V
requirements. (Id. at ¶ 24.) Mr. York received two letters from the Polk County
6KHULII·V Office stating that his home may be within 1,000 feet of a school bus
stop. (Id. at ¶ 27.) Mr. Owens, who is incarcerated, may be unable to qualify for
parole because he cannot afford accommodations himself and the residences of
his family members and the accommodations available in halfway houses do not
comply with the $FW·V requirements. (Id. at ¶ 30.) Mr. Marks was informed by
the Cobb County 6KHULII·V Office that his home is within 1,000 feet of a school bus
stop and that he must leave the residence. (Id. at ¶ 34.) Mr. Marks and his family
have searched for a residence that complies with the Act for six weeks, but have
unable to find housing. (Id. at ¶ 35.) Ms. Collins was notified by the Rockdale
County 6KHULII·V Office that she would need to leave Door of Hope in Rockdale
County because a school bus stop was located within 1,000 feet of the residence. (Id. at ¶ 39.) Ms. Collins searched for a new home for three weeks without
  
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success before moving to the Door of Hope in Polk County. (Id. at ¶¶ 39-­42.)
Because the Door of Hope in Polk County conducts religious programs and
services, however, the residence may not be suitable under the Act. (Id. at ¶ 43.)
Plaintiff Reverend Joel Jones, who is not a member of the Plaintiff class in
this case, is a minister and serves on the Board of Directors of the Door of Hope
Ministry in Rockdale County, which is a faith-­based halfway house that ministers
to women who have been released from prison, including Plaintiff Collins. (Id. at
¶ 45.) Plaintiff Jones alleges that his spiritual beliefs compel him to provide
assistance and spiritual leadership to people released from prison and jail. (Id.)
The Second Amended Complaint alleges that the Door of Hope in Rockdale
County ´ZLOO no longer be able to house women on the registry because residents
engage in religious worship and because the PLQLVWU\·V . . . location is within
1,000 feet of a school bus VWRSµ (Id.)
Plaintiffs contend that the Act is unconstitutional because it violates (1) U.S.
Const. art. I, § 10, prohibiting ex post facto laws, Bills of Attainder, and laws that
impair the obligation of contracts;; (2) the procedural component of the Due
Process Clause;; (3) the substantive component of the Due Process Clause and the
right to family privacy;; (4) the Religious Land Use and Institutionalized Persons
Act, 42 U.S.C. § 2000cc (2006) ´5/8,3$µ (5) the Free Exercise Clause and the
right to freedom of association;; (6) the Takings Clause;; (7) the right to interstate
and intrastate travel;; and (8) the Eight $PHQGPHQW·V prohibition on cruel and unusual punishment.5 Plaintiffs request that the Court declare certain portions of
the Act unconstitutional and permanently enjoin the enforcement of those
provisions. Defendants Perdue and Baker have moved to dismiss 3ODLQWLIIV·
        
   5 Plaintiffs also seek a declaration that the Act is vague and overbroad.
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Second Amended Complaint pursuant to Federal Rules of Civil Procedure
  
12(b)(1) and 12(b)(6).
  
II. STANDARD OF REVIEW
  
Pursuant to Rule 12(b)(6), a defendant may seek to dismiss a complaint for
failure to state a claim upon which relief can be granted. ´$ motion to dismiss
should be granted only if it appears beyond doubt that the plaintiff can prove no
set of facts in support of [its] claim which would entitle [it] to relief. 75 Acres,
L.L.C. v. Miami-­Dade County, 338 F.3d 1288, 1293 (11th Cir. 2003) (citing Conley
v. Gibson, 355 U.S. 41, 45-­46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). ´,Q evaluating
such a motion, [the court] accept[s] the factual allegations in the complaint as true
and . . . construe[s] them in the light most favorable to the SODLQWLIIµ 75 Acres,
338 F.3d at 1293 (citing Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003)). A
court evaluating a Rule 12(b)(6) motion may not consider matters outside the
pleadings unless the court treats the motion to dismiss as a motion for summary
judgment under Federal Rule of Civil Procedure 56 and gives all parties
´UHDVRQDEOH opportunity to present all material made pertinent to such a motion
by Rule µ Fed. R. Civ. P. 12(b);; see also Moss v. W & A Cleaners, 111 F.
Supp.2d 1181, 1185 (M.D. Ala. 2000).
Federal Rule of Civil Procedure 12(b)(1) provides that a defendant may
move for dismissal on the grounds that a court lacks subject matter jurisdiction.
Rule 12(b)(1) motions may involve facial or factual attacks on a FRXUW·V subject
matter jurisdiction. The Eleventh Circuit recently summarized the FRXUW·V
inquiry when, as here, a standing challenge is raised in a motion to dismiss:
When standing is questioned at the pleading stage . . . general factual allegations of injury resulting from the GHIHQGDQW·V FRQGXFW may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim. We accept as true all material allegations contained in the complaint and construe the complaint in a light most favorable to the complaining
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party. Moreover, in the context of a Rule 12(b)(1) challenge to standing, we are obligated to consider not only the pleadings, but to examine the record as a whole to determine whether we are empowered to adjudicate the matter at hand. Elend v. Basham, 471 F.3d 1199, 1208 (11th Cir. 2006) (citation and internal marks
  
omitted). With this standard in mind, the Court will proceed to consider the
merits of 'HIHQGDQWV· arguments.
III. LEGAL ANALYSIS
A. Standing
Defendants first assert that Plaintiffs lack standing in the instant case
because they cannot show actual injury. (Brief in Support of 'HIV· Motion to
Dismiss in Lieu of Answer [Doc. No. 34-­2] (hereinafter ´'HIV· %ULHIµ p. 6.)
Defendants argue that Plaintiffs lack standing to challenge that portion of the Act
that prohibits registered sex offenders from residing or loitering within 1,000 feet
of a church, § 42-­1-­15(a), because Plaintiffs are not prohibited from attending
church and no Plaintiff is currently in violation of the residency requirement
pertaining to churches. Defendants further contend that Plaintiffs cannot
challenge that portion of the Act that prohibits sexually dangerous predators from
being employed within 1,000 feet of an area where minors congregate, § 42-­1-­
15(b)(2), because no Plaintiff is a sexually dangerous predator. Defendants finally
argue that certain Plaintiffs lack standing to challenge the school bus stop
provision.
The standard that this Court uses to evaluate whether Plaintiffs have
standing is well-­settled. As stated by the Eleventh Circuit,
First, the plaintiff must have suffered an ´LQMXU\ in IDFWµ -­ an invasion of a legally protected interest which is (a) concrete and particularized and (b) ´DFWXDO or imminent, not ¶conjeFWXUDO· RU ¶K\SRWKHWLFDO·µ Second, there must be a causal connection between the injury and the conduct complained of -­ the injury has to be ´IDLUO\ traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the FRXUWµ Third, it must be ´OLNHO\µ as opposed to merely ´VSHFXODWLYHµ that the
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injury will be ´UHGUHVVHG by a favorable GHFLVLRQµ Doe v. Pryor, 344 F.3d 1282, 1285 (11th Cir. 2003) (quoting Lujan v. Defenders of
  
Wildlife, 504 U.S. 550, 560-­61, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992)
(citations, footnote, and some internal marks omitted)). Importantly, as
previously noted, insofar as the instant case is before the Court on a motion to
dismiss, ´JHQHUDO factual allegations of injury resulting from the GHIHQGDQW·V
conduct may VXIILFHµ and the Court ´SUHVXPH>V@ that general allegations embrace
those specific facts that are necessary to support the FODLPµ Id. (citation and
internal marks omitted). The Court ´PD\ consider affidavits and other factual
materials in the UHFRUGµ 1DW·O $VV·Q of State Utility Consumer Advocates v.
Federal Communications, 457 F.3d 1238, 1251 (11th Cir. 2006). In addition, the
Court does not consider 3ODLQWLIIV· likelihood of success on the merits when
evaluating standing. Warth v. Seldon, 422 U.S. 490, 500, 95 S. Ct. 2197, 45 L. Ed.
2d 343 (1975).
  
The Court notes that ´>L@Q order to bring a claim on behalf of other similarly
situated persons, the named plaintiff must have standing to bring the FODLPµ
Cummings v. Baker, 130 Fed. Appx. 446, 449 (11th Cir. 2005) (citation omitted);; see
also Jackson v. Okaloosa County, 21 F.3d 1531, 1536 (11th Cir. 1994) ´,Q order for
this court to have jurisdiction over the claims before us, at least one named
plaintiff must have standing for each of the FODLPVµ In the instant case, the
Second Amended Complaint does not indicate that any of the named Plaintiffs are
classified as sexually dangerous predators, and the Court has not uncovered any
such evidence elsewhere in the record. Plaintiffs do not dispute that they lack
standing to challenge the enforcement of residency restrictions applicable only to
sexually dangerous predators and state that those restrictions are not challenged
in this case.
  
As to 3ODLQWLIIV· claims regarding the portion of the Act that prohibits
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registered sex offenders from living or working within 1,000 feet of a church, the
Court finds that Plaintiffs Victor Wilson and Lori Collins have standing to
challenge the constitutionality of that portion of the Act. According to the
allegations of the Complaint, Mr. Wilson has received an offer of full-­time
employment from an accounting firm at which he previously worked while
pursuing a college degree. (Second Am. Compl. ¶ 21.) The accounting firm is
located within 1,000 feet of a church. (Id. at ¶ 23.) Therefore, if the Act is enforced,
Mr. Wilson will have to resign his current position and will be unable to accept the
ILUP·V full-­time employment offer. Mr. Wilson satisfies the requirements of
imminent injury-­in-­fact caused by the operation of the Act, for which the instant
action seeking injunctive relief provides a remedy. Ms. Collins
lived at the Door of Hope residential ministry in Rockdale County until June 2006,
when she moved to the Door of Hope residential ministry in Polk County after
being informed that her former residence was within 1,000 feet of a school bus
stop. (Id. at ¶¶ 37, 42.) The Door of Hope in Polk County conducts religious
programs and services and hosts religious events, prayer, and worship. (Id. at ¶
43.) As previously noted, the Act prohibits anyone registered as a sex offender
from living within 1,000 feet of a church. § 42-­1-­15(a). ´&KXUFKµ is defined as ´D
place of public religious ZRUVKLSµ § 42-­1-­12(a)(7). If the Act is enforced, Ms.
Collins likely will have to abandon her current residence.6 She satisfies the
requirements of imminent injury-­in-­fact caused by the operation of the Act, for
which the instant action seeking injunctive relief provides a remedy.
Defendants do not challenge the standing of Plaintiff Jones to bring a claim
  
under RLUIPA. However, Plaintiffs address this issue in their response brief and
  
     
6 Whether the Door of Hope would be considered to be a place of public religious worship is not a proper determination at this stage of the proceedings.   
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the Court finds it appropriate to consider Mr. -RQHV· standing here. Mr. Jones is a
minister and serves on the Board of Directors of the Door of Hope residential
ministry in Rockdale County. (Second Am. Compl. ¶ 45.) Door of Hope operates
a halfway house that ministers to women who have been released from prison.
(Id.) As previously noted, Door of Hope in Rockdale County is located within
1,000 feet of a school bus stop and its residents engage in religious worship. (Id.)
Plaintiff argues that, because of the Act, Mr. Jones cannot provide a residence for
registered sex offenders. Standing to assert a claim under RLUIPA is determined
´E\ the general rules of standing under article III of the &RQVWLWXWLRQµ 42 U.S.C. §
2000cc-­2(a). RLUIPA prevents governments from imposing a ´VXEVWDQWLDO
EXUGHQµ on the religious exercise of a person or a religious assembly by imposing
a land use regulation, unless that land use regulation is necessary to further a
compelling state interest. 42 U.S.C. § 2000cc(a)(1). In addition, governments may
not impose land use regulations that treat religious institutions on less than equal
terms with secular institutions. 42 U.S.C. § 2000cc(b)(1). A land use regulation is
defined as a zoning or landmarking law ´WKDW limits or restricts a FODLPDQW·V use or
development of land . . . if the claimant has an ownership, leasehold, easement,
servitude or other property interest in the regulated ODQGµ 42 U.S.C. § 2000cc-­
5(5). The term ´FODLPDQWµ is in turn defined to mean ´D person raising a claim or
defense under this $FWµ 42 U.S.C. § 2000cc-­5(1). Plaintiffs do not allege that Mr.
Jones has an ownership interest in the Door of Hope in Rockdale County. The
Court has been unable to locate any authority holding that a minister or church
board member has standing to assert claims under RLUIPA where that minister
does not own a property interest in the property at issue. The Court therefore
cannot determine whether Mr. Jones has standing to pursue a claim under RLUIPA, and the Court would ordinarily permit Plaintiffs an opportunity to
  
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amend their complaint to sufficiently allege standing. However, in the instant
case, the Court finds that even if Mr. Jones had standing to pursue claims under
RLUIPA, Plaintiffs fail to state a RLUIPA claim, see infra, and any such
amendment accordingly would be futile.
As to 3ODLQWLIIV· standing to challenge that portion of the Act that prohibits
anyone on the sex offender registry from residing within 1,000 feet of a school bus
stop, Defendants argue that Plaintiff Whitaker has a suitable housing option that
complies with the Act;; that Plaintiff Linaweaver found suitable housing but his
rental application was rejected because of his status as a convicted felon;; that
Plaintiff Allison has ´IDLOHG to negate the fact that there is available KRXVLQJµ that
Plaintiff Wilson has found suitable housing;; that Plaintiff York has not been
threatened with prosecution if he fails to move;; that Plaintiff Owens is currently
incarcerated and has not been denied parole based on the Act;; that Plaintiff
0DUNV· allegation that he has not found housing for himself and his parents is
insufficient;; and that Plaintiff Collins has found suitable housing.7 Defendants
argue that Plaintiffs do not have the right to live where they want. This argument,
however, plainly reaches into the merits of this case and is not an appropriate
consideration when evaluating standing.
As an initial matter, the Court disagrees with 'HIHQGDQWV· position that all
named Plaintiffs who have located housing that complies with the $FW·V
requirements (according to Defendants, Plaintiffs Whitaker, Linaweaver, Wilson
and Collins fall within this category) have not suffered an injury-­in-­fact sufficient
to satisfy standing requirements. Defendants do not explain why the forced
  
        
7 Defendants also argue that Mr. Jones does not have standing to challenge the school bus stop provision because he is not a registered sex offender. The Court agrees with this position.   
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relocation of those individuals pursuant to a potentially unconstitutional
legislative enactment would not constitute an injury-­in-­fact. The mere fact that
Plaintiffs are able to comply with the AcW·V residency restrictions does not remove
the injury associated with that compliance. In addition, the Court is unpersuaded
by 'HIHQGDQWV· argument that Plaintiffs Allison and Marks lack standing to bring
this challenge because their allegations that they have not found housing are
insufficient or because they have failed to ´QHJDWHµ that housing is available.
Defendants cite no authority for this position and have cited nothing to indicate
that Plaintiffs are obligated to come forward with any evidence regarding the
nature and extent of housing options in order to support standing in this case.
Finally, Defendants contend that Plaintiff York lacks standing because he
has not been threatened with prosecution if he fails to move. Defendants more
generally take the position that, ´>X@QWLO each Plaintiff has shown they have been
actually injured by the imposition of the [Act] as to each individual Plaintiff, their
¶IHDU· of prosecution is speculative at bestµ 'HIV· Brief, p. 9.) Defendants are
essentially arguing that the injury is hypothetical. The Court does not find this
position persuasive. As an initial matter, the Court agrees with 3ODLQWLIIV·
conclusion that the prior Orders in this case have effectively halted the
enforcement of the school bus stop provision. It is undisputed that Plaintiffs, with
the exception of Mr. Jones, are registered sex offenders who are subject to the Act.
Before this lawsuit was filed, Plaintiffs Linaweaver, Allison, York, Marks, and
Collins were notified by local 6KHULIIV· offices that they will need to relocate to
comply with the school bus stop provision. Plaintiff Collins has already relocated
to a residence to comply with the school bus stop provision, but that residence may
not comply with the requirement that registered sex offenders not reside within 1,000 feet of a church. Plaintiffs Whitaker and Wilson have become aware
  
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that their current residences are within 1,000 feet of where a school bus stops to
pick up a child and have been searching for other residences. Plaintiff Owens
cannot afford to pay for a residence and all available residences of family
members and all halfway houses are within 1,000 feet of where a school bus stops
to pick up a child. Mr. Owens therefore cannot submit an acceptable home plan to
the parole board. These Plaintiffs have suffered or are in imminent danger of
suffering an actual injury occasioned by the enforcement of the school bus stop
provision. These injuries are caused by the operation of the Act, and an injunction
barring the enforcement of the Act would provide a remedy to Plaintiffs.
'HIHQGDQWV· standing challenge speaks more directly to the merits of 3ODLQWLIIV·
constitutional claims than to this &RXUW·V subject matter jurisdiction.
B. Ex Post Facto Prohibition
  
Article I, § 10 of the United States Constitution provides that states may not
pass ex post facto laws. Ex post facto laws impose retroactive punishment;; in other
words, they increase the punishment for criminal acts after they have been
committed. Defendants argue that the Act is regulatory rather than punitive,
precluding a finding that the Act is an unconstitutional ex post facto law. This
Court disagrees. While the Court recognizes that residency restrictions have been
upheld in other cases, the Act at issue in the instant case imposes more severe
residency restrictions than those evaluated in those opinions.
The Supreme Court reviewed the framework used to evaluate an ex post
facto challenge in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164
(2003). Pursuant to that framework, this Court first considers whether the Act
was intended to establish civil or criminal proceedings. Smith, 538 U.S. at 92. ´,I
the intention of the legislature was to impose punishment, that ends the LQTXLU\µ
Id. If the legislature intended to enact a civil, nonpunitive regulatory scheme,
  
   - 15 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g0107 of 4P4ageP1g6IDof 54838
           
however, the Court further examines whether the Act is ´VR punitive either in
purpose or in effect as to negate [the 6WDWH·V@ intention to deem it FLYLOµ Id.
(citation and internal marks omitted).
The Court ´FRQVLGHUV the VWDWXWH·V text and its structure to determine the
legislative REMHFWLYHµ Id. (citation omitted). The Court must give ´FRQVLGHUDEOH
GHIHUHQFHµ to the OHJLVODWXUH·V stated intent. Id. at 93. In this case, as in Smith, the
legislature stated its intention with regard to the registration requirement: ´7KH
designation of a person as a sexual offender is neither a sentence nor a
punishment but simply a regulatory mechanism and status resulting from the
conviction of certain FULPHVµ HB 1059, § 1. In the instant case, however, the
legislature did not include any statement specifically addressing its intention as to
the residency restrictions. Indeed, the residency restrictions are not included in
the list of strategies purportedly implemented by the legislature in Section 1 of HB
  
1059. The &RXUW·V inquiry into legislative intent, therefore, is not aided by the
stated intention of the legislature in the instant case.8
As to the prior residency restrictions, the Georgia Supreme Court stated:
  
The Statute is designed to safeguard against encounters between minors and a convicted sex offender by requiring at least a 1,000 foot distance between places where the former congregate and the latter resides. While not every convicted sex offender will be a recidivist, the statute aims to lessen the potential for those offenders inclined toward recidivism to have contact with, and possibly victimize, the youngest members of society.
Mann v. State, 278 Ga. 442, 443-­444, 603 S.E.2d 283, 286 (2004). Defendants
interpret the above statement as a finding of legislative intent. Even if the Court
     
   8 Plaintiffs argue that the Court must accept, as true, their allegations that the intent
of the Act was to punish registered sex offenders by removing them from Georgia. 3OV· Resp. to 'HIV· Motion to Dismiss [Doc. No. 88], p. 10.) The Court considers 3ODLQWLIIV· allegation as to this issue to be conclusory and does not find that it is bound by this FRQFOXVLRQLQDGGUHVVLQJ'HIHQGDQWV·PRWLRQWRGLVPLVV   
- 16 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g01087 of 4P4ageP1g7IDof 54839
           
were to agree with 'HIHQGDQWV· interpretation of this language,9 the Court does
not find this statement controlling in the instant case, which challenges
subsequent revisions to the residency requirements.10
´2WKHU formal attributes of a legislative enactment, such as the manner of its
codification or the enforcement procedures it establishes, are probative of the
OHJLVODWXUH·V LQWHQWµ Smith, 538 U.S. at 94 (citation omitted). The Act is codified
in Title 42 of the Georgia Code, which is entitled ´3HQDO ,QVWLWXWLRQVµ It appears
in Chapter 1, ´*HQHUDO 3URYLVLRQVµ at Article 2, ´6H[XDO Offender Registration
Review %RDUGµ Other matters addressed in Title 42 include correctional
institutions, conditions of detention, probation, pardons and paroles, and transfer
of prisoners. The provisions in Title 42 appear to relate exclusively to criminal
administration, but they do not appear punitive. See Smith, 538 U.S. at 95. As for
enforcement procedures, the Act does not appear to provide any specific
enforcement procedures;; it merely provides that registered sex offenders who fail
to comply with the Act ´VKDOO be guilty of a felony and shall be punished by
imprisonment for not less than ten nor more than 30 \HDUVµ O.C.G.A. § 42-­1-­
15(d). With the exception of the harsh penalty imposed for those offenders who
fail to comply with the Act, the Court agrees with 'HIHQGDQWV· position that
´>Q@RWKLQJ on the face of the Act as a whole or the specific statute in question
suggests that it is anything but a regulatory scheme designed to protect the
  
        
9 This statement appears in the Georgia Supreme &RXUW·s analysis of the state interest underlying the residency restrictions, in connection with evaluating a takings challenge to the former statute. Accordingly, legislative intent was not directly at issue in that case.   
10 As Defendants note, the residency restrictions in effect prior to the 2006 amendment have been found not to constitute an ex post facto law, and this Court will not consider these restrictions here. See Doe v. Baker, No. 1:05-­CV-­2265-­TWT (N.D. Ga. 2006).
  
     
- 17 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g01097 of 4P4ageP1g8IDof 54930
           
SXEOLFµ 'HIV· Brief, p. 11.)
  
The Court next determines whether, assuming that the OHJLVODWXUH·V intent
was to establish civil, nonpunitive residency restrictions, the effect of the Act is
nonetheless so punitive in effect as to negate the legislative intent. The Court
recognizes that ´RQO\ the clearest proof will suffice to override legislative intent
and transform what has been denominated a civil remedy into a criminal
SHQDOW\µ Smith, 538 U.S. at 92. In undertaking this inquiry, the Court considers
the ´JXLGHSRVWVµ described in Kennedy v. Mendoza-­Martinez, 372 U.S. 144, 168-­
169, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963). Smith, 538 U.S. at 97 (noting that the
factors are ´QHLWKHU exhaustive nor GLVSRVLWLYHµ The following factors are
evaluated to determine if a statute is punitive: (1) whether the statute ´KDV been
regarded in our history and traditions as SXQLVKPHQWµ (2) whether it ´LPSRVHV an
affirmative disability or UHVWUDLQWµ (3) whether it ´SURPRWHV the traditional aims of
SXQLVKPHQWµ (4) whether it ´KDV a rational connection to a nonpunitive SXUSRVHµ
and (5) whether it ´LV excessive with respect to this SXUSRVHµ Id.
The Court first evaluates whether the Act has been regarded in our history
and traditions as punishment. ´>$@ State that decides to punish an individual is
likely to select a means deemed punitive in our tradition, so that the public will
recognize it as VXFKµ Id. Banishment has been regarded historically as a
punishment, id. at 98, and Plaintiffs argue that the Act sufficiently resembles
banishment to support a finding that this factor weighs in their favor. Defendants
argue that the Act does not effectively banish registered sex offenders because the
Act does not mandate that those individuals be ´SHUPDQHQWO\ expelled from their
community and prevented from UHWXUQLQJµ which is the historic definition of
banishment. 'HIV· Brief, p. 13.) Because the Act addresses only residency and
loitering and does not impact any other activities in ´UHVWULFWHGµ areas, Defendants
  
   - 18 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g02007 of 4P4ageP1g9IDof 54931
           
contend that the Act cannot be considered banishment.
  
While the Court acknowledges that the Eighth Circuit found this position
persuasive in Doe v. Miller, 405 F.3d 700 (8th Cir. 2005), the Court disagrees with
its application in the instant case.11 In particular, the Court finds that it could
reasonably conclude, when presented with evidence regarding the availability of
housing and the areas impacted by the Act, that the Act ´VXIILFLHQWO\ resembles
banishment to make this factor weigh towards finding the law SXQLWLYHµ Miller,
405 F.3d at 724 (Melloy, J., dissenting). The Court agrees with Judge 0HOOR\·V
opinion that a statute found to be substantially similar to banishment could
support a finding of punitive effect. In this case, Plaintiffs may be able to establish
that they are effectively excluded from many communities in Georgia by
operation of the Act. If the Court required Plaintiffs to prove banishment as
historically defined in order to pursue an ex post facto challenge, the Georgia
legislature could prohibit sex offenders from living anywhere in the State of
Georgia without raising a question of punitive effect relevant to an ex post facto
determination. This position goes too far. The Act may be found to sufficiently
resemble banishment so as to support a finding that it is punitive in effect.
The Court next considers whether the law imposes an affirmative disability
or restraint. ´+HUH we inquire how the effects of the Act are felt by those subject
to LWµ Smith, 538 U.S. at 99-­100. ´,I the disability or restraint is minor and
indirect, its effects are unlikely to be SXQLWLYHµ Id. at 100. In the instance case,
  
     
11 The Miller decision considered several constitutional challenges to an Iowa statute prohibiting certain registered sex offenders from living within 2,000 feet of a school or a registered child care facility. The statute considered in Miller included a grandfather clause that permitted registered sex offenders to retain residences established prior to the effective date of the statute, even if those residences did not comply with the new statutory requirements. See Miller, 405 F.3d at 719. The Act at issue in this case, however, does not include a grandfather provision.   
- 19 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g02017 of 4P4ageP2g0IDof 54932
           
unlike Smith, the Act imposes a physical restraint on the available residences of
registered sex offenders. See also Miller, 405 F.3d at 721 (statute imposed
affirmative disability or restraint). The Act at issue in this case does not leave
registered sex offenders ´IUHH to change jobs or UHVLGHQFHVµ Smith, 538 U.S. at
100. Registered sex offenders are not ´IUHH to move where they wish and to live
and work as other citizens, with no VXSHUYLVLRQµ Id. at 101. Moreover, school
bus stops are inherently transient and may be designated by local school boards of
education at any time under the Act, significantly limiting the permanency of
residences that can be established by registered sex offenders and impairing their
ability to form relationships in their chosen communities. On its face, the Act
does not require that any notice be provided to a sex offender who is in violation
of the $FW·V requirements and does not provide any specified time period within
which that person can locate a new residence that complies with the Act. The
Court cannot agree with 'HIHQGDQWV· argument that the residency restriction ´LV a
minor and indirect effect of a conviction for a sexual RIIHQVHµ 'HIV· Brief, p. 16.)
Thirdly, the Court evaluates whether the Act promotes the traditional aims
of punishment. The parties do not dispute that one of the purposes of the Act is
deterrence, a traditional aim of punishment. Consistent with Smith, the Court
recognizes that ´>D@Q\ number of governmental programs might deter crime
without imposing SXQLVKPHQWµ Smith, 538 U.S. at 102. While the Court does not
rely on this factor alone to conclude that Plaintiffs state an ex post facto claim, the
Court does consider this factor to weigh in favor of finding the law punitive in
effect.
  
Finally, the Court considers whether the Act has a rational connection to a
nonpunitive purpose and whether it is excessive as to that purpose. ´7KH $FW·V
rational connection to a nonpunitive purpose is a ¶PRVW VLJQLILFDQW· factor in our
  
   - 20 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g02027 of 4P4ageP2g1IDof 54933
           
determination that the VWDWXWH·V effects are not SXQLWLYHµ Smith, 538 U.S. at 102
(citation omitted). Plaintiffs admit that the Act has a rational connection to a
nonpunitive purpose but contend that the Act is excessive. The Act is rationally
connected to the nonpunitive purpose of protecting the public, particularly
children, from the risk that a registered sex offender will reoffend by limiting the
ability of registered sex offenders to reside and work near (and thereby
presumably to reduce their opportunity to access) children.
Plaintiffs argue that the Act is excessive because it fails to differentiate
between people on the sex offender registry ² it treats everyone the same,
regardless of whether the person engaged in a consensual act or a violent offense.
Plaintiffs additionally allege that the Act may actually foster recidivism by creating
instability in housing and employment. Defendants disagree, noting that a perfect
or close fit between the Act and its goals is not required and arguing that the
legislature acted properly in this case. The Court acknowledges that a close or
perfect fit is not required;; however, the Court nonetheless finds that the $FW·V
failure to distinguish among sex offenders and failure to identify those registered
sex offenders who are most likely to reoffend, when coupled with the fact that the
instability created by the Act may be harmful to the public, could support a
finding that the Act is excessive.
In addition to the factors set forth in Smith, the Court additionally finds it
appropriate to consider the consequences of violating the Act. The sanction of
residing within 1,000 feet of a school bus stop is particularly severe. The Act
provides that any registered sex offender who ´NQRZLQJO\µ violates the $FW·V
provisions ´VKDOO be guilty of a felony and shall be punished by imprisonment for
not less than ten nor more than 30 \HDUVµ O.C.G.A. § 42-­1-­15(d). This harsh sanction supports a finding that the Act is punitive in effect.
  
   - 21 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g02037 of 4P4ageP2g2IDof 54934
           
In short, the Court finds that, when taken in the light most favorable to
Plaintiffs, the allegations in the Second Amended Complaint are sufficient to raise
a question regarding whether the Act impermissibly increases the punishment for
previously-­committed crimes. The Court acknowledges the obvious fact that
some individuals required to register as sex offenders have committed serious,
violent offenses. However, to the extent that the Act is ultimately found to be
punitive in effect, it is the function of the criminal laws of the state, and not
residency restrictions imposed after the sentence has been determined and
fulfilled, to punish those individuals for this conduct.
Plaintiffs state a claim that the Act violates the ex post facto prohibition.
'HIHQGDQWV· motion to dismiss this portion of Count 1 of 3ODLQWLIIV· Second
Amended Complaint is DENIED. See Gibbs v. Buck, 307 U.S. 66, 76, 59 S. Ct. 725,
83 L. Ed. 1111 (1939) ´:KHUH the [case] makes an attack upon the constitutionality
of a state statute, supported by factual allegations sufficiently strong, as here, to
raise ¶JUDYH doubts of the constitutionality of the $FW· in the mind of the trial
court, the motion to dismiss for failure to state a cause of action should be
GHQLHGµ
C. Eighth Amendment The Eighth Amendment provides that ´>H@[FHVVLYH bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment LQIOLFWHGµ U.S. CONST. amend. VIII. Defendants argue that the Act does not violate the Eighth Amendment because it is not punitive, and, even if the Act is punitive, the punishment imposed by the Act is not severe enough to constitute cruel and unusual punishment. Plaintiffs do not address the Eighth Amendment in their response brief, and the Court deems the Eighth Amendment claim to be abandoned. See Local Rule 7.1B;; Roberts v. City of Hapeville, No. 1:05-­CV-­1614-­
  
   - 22 -

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WSD, 2007 U.S. Dist. LEXIS 10508 (N.D. Ga. Feb. 15, 2007);; City of Lawrenceville
v. Ricoh Electronics, Inc., 370 F. Supp. 2d 1328, 1333 (N.D. Ga. 2005).
Even if Plaintiffs had not abandoned this claim, the Court finds that the Act
does not impose cruel and unusual punishment within the meaning of the Eighth
Amendment. A punishment will be found to be cruel and unusual if it is barbaric
or excessive. Coker v. Georgia, 433 U.S. 584, 591-­92, 97 S. Ct. 2861, 53 L. Ed. 2d
982 (1977) (plurality). ´>$@ punishment is ¶H[FHVVLYH· and unconstitutional if it (1)
makes no measurable contribution to acceptable goals of punishment and hence is
nothing more than the purposeless and needless imposition of pain and suffering;;
or (2) is grossly out of proportion to the severity of the FULPHµ Id. The Court
finds no support for the position that the $FW·V residency restrictions or the
requirement that Plaintiffs register as sex offenders satisfies this standard. Count
8 of 3ODLQWLIIV· Second Amended Complaint is DISMISSED.
  
D. Procedural Due Process
The Due Process Clause of the Fourteenth Amendment provides that ´>Q@R
State shall . . . deprive any person of life, liberty, or property without due process
of ODZµ U.S. CONST. amend. XIV, § 1. Defendants argue that the Act does not
violate the procedural requirements of due process because the triggering event
for the imposition of the $FW·V residency restrictions is the conviction of a sexual
offense or crime against a child and no individualized determination of
dangerous is required. According to Defendants, because the Act does not
provide for an exemption from its requirements, additional procedures are
unnecessary, insofar as any fact other than the requirement that an individual
register as a sex offender is irrelevant under the statute. Plaintiffs argue that they
have a constitutionally protected interest in life, liberty, and property, which
encompasses their homes and professions, and that in order to deprive them of
  
   - 23 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g02057 of 4P4ageP2g4IDof 54936
           
these interests, adequate procedures must be employed.
  
The Court finds Connecticut Department of Public Safety v. Doe, 538 U.S. 1,
  
123 S. Ct. 1160, 155 L. Ed. 2d 98 (2003) to be instructive here. In Connecticut, the
Supreme Court considered a due process challenge to &RQQHFWLFXW·V sex offender
registry statute. The plaintiff in that action, a convicted sex offender subject to the
VWDWH·V registration statute, argued that the registration requirement deprived him
of a liberty interest, in the form of his reputation, without notice or an opportunity
to be heard. Connecticut, 538 U.S. at 6. The Supreme Court assumed that the
plaintiff had been deprived of a liberty interest but found that ´GXH process does
not entitle him to a hearing to establish a fact that is not material under the
Connecticut VWDWXWHµ Id. at 7. The residency requirements ´WXUQ on an RIIHQGHU·V
conviction alone ² a fact that a convicted offender has already had a procedurally
safeguarded opportunity to FRQWHVWµ Id. (citation omitted).
The Supreme Court stated,
  
In short, even if respondent could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders ² currently dangerous or not ² must be publicly disclosed. Unless respondent can show that that substantive rule of law is defective (by conflicting with a provision of the Constitution), any hearing on current dangerousness is a bootless exercise. . . . States are not barred by principles of ´SURFHGXUDO due SURFHVVµ from drawing . . . classifications.
  
Id. at 7-­8 (emphasis removed and citation omitted);; see also Doe v. Miller, 405
  
F.3d 700, 709 (8th Cir. 2005) ´7KXV the absence of an individualized hearing in
connection with a statute that offers no exemptions does not offend principles of
procedural due SURFHVVµ
Similarly, in this case, Plaintiffs argue that prior to being forced to leave
their residences, they should have an opportunity to challenge the
´DSSURSULDWHQHVV of such an HYLFWLRQµ 3OV· Resp. to 'HIV· Motion to Dismiss, p.
21.) Plaintiffs argue that the Act is defective because it fails to provide for
   - 24 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g02067 of 4P4ageP2g5IDof 54937
           
´LQGLYLGXDOL]HG consideration of GDQJHURXVQHVVµ (Id.) For the reasons stated in
  
Connecticut, 3ODLQWLIIV· procedural due process challenge cannot succeed.12 Count
  
2 of 3ODLQWLIIV· Second Amended Complaint is DISMISSED.
  
E. Substantive Due Process
  
The substantive component of the due process clause protects certain
fundamental rights from infringement, regardless of the procedures provided,
unless the infringement satisfies the strict scrutiny analysis. U.S. CONST. amend.
XIV;; see Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005). Defendants contend that
Plaintiffs do not have a legitimate liberty interest that can be described as a
fundamental right. Plaintiffs disagree, arguing that the Act impermissibly
burdens their fundamental right to live with their families.
Fundamental rights protected by substantive due process are those rights
´WKDW are so ¶LPSOLFLW in the concept of ordered OLEHUW\· that ¶QHLWKHU liberty nor
justice would exist if they were VDFULILFHG·µ Moore, 410 F.3d at 1342 (quoting
Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 152, 82 L. Ed. 288 (1937);;
McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en banc)). ´:KHQ a state
enacts legislation that infringes fundamental rights, courts will review the law
under a strict scrutiny test and uphold it only when it is ¶QDUURZO\ tailored to
serve a compelling state LQWHUHVW·µ Id. at 1343 (quoting Reno v. Flores, 507 U.S.
        
  
12 Plaintiffs do not address Connecticut in their response brief. Instead, Plaintiffs rely on Matthews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) to support their position. The Matthews decision addressed the issue of whether procedural due process required that the recipient of Social Security disability benefits payments be afforded an opportunity for an evidentiary hearing prior to the SD\PHQWV· termination;; the Court found that it did not. Plainly the existence of a continuing disability would be relevant to a determination of whether the disability benefits payments should continue. In contrast, in this case, the dangerousness of the registered sex offender is not a statutory prerequisite for the application of the residency restrictions.   
- 25 -

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292, 302, 113 S. Ct. 1439, 1447, 123 L. Ed. 2d 1 (1993)). A substantive due process
claim is analyzed by ´ILUVW crafting a ¶FDUHIXO description of the asserted ULJKW·µ Id.
(quoting Flores, 507 U.S. at 302, 113 S. Ct. at 1447). ´6HFRQG we must determine
whether the asserted right is one of those fundamental rights and liberties which
are, objectively, deeply rooted in this 1DWLRQ·V history and tradition, and implicit
in the concept of ordered liberty, such that neither liberty nor justice would exist if
they were VDFULILFHGµ Id. (citations and internal marks omitted).
The Court begins with a careful description of the fundamental right at
issue. In the instant case, as noted, Plaintiffs allege that the Act interferes with
their fundamental right to live with their families. Fundamental rights that have
received protection under substantive due process include ´WKH rights to marry, to
have children, to direct the education and upbringing of RQH·V children, to marital
privacy, to use contraception, to bodily integrity, and to DERUWLRQµ Washington v.
Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997);; see also
Roberts v. United States Jaycees, 468 U.S. 609, 617-­618, 104 S. Ct. 3244, 82 L. Ed. 2d
462 (1984) ´>&@KRLFHV to enter into and maintain certain intimate human
relationships must be secured against undue intrusion by the State because of the
role of such relationships in safeguarding the individual freedom that is central to
our constitutional VFKHPHµ The Supreme Court has expressed a reluctance to
´H[SDQG the concept of substantive due process because guideposts for responsible
decisionmaking in this unchartered area are scarce and open-­HQGHGµGlucksberg,
521 U.S. at 720. The Eleventh Circuit has additionally noted that the Supreme
Court ´KDV not created a broad category where any alleged infringement on
privacy and liberty will be subject to substantive due process SURWHFWLRQµMoore,
410 F.3d at 1344. Consistent with the Moore decision, the Court begins by defining the scope of the claimed fundamental right in this case by referencing the
  
   - 26 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g02087 of 4P4ageP2g7IDof 54939
           
Act itself. Id.
  
Under this formulation, the right at issue in this case could be described as

the right of a person registered as a sex offender under Georgia law to reside with

his or her family in a location within 1,000 feet of a school bus stop and/or a

church. Such a narrowly-­defined right plainly would not be fundamental within

the meaning of substantive due process jurisprudence. The Court is not satisfied,

however, that the right as stated above is the only appropriate description of the

right at issue in this case. As this case proceeds and the factual background is

more fully developed, the contours of the right at issue may emerge in sharper

focus. The Act may reach deeper into intimate family relationships and choices

regarding child rearing and marriage than is immediately apparent. While the

Court does not disagree with 'HIHQGDQWV· assertion that there is no right to live

where you want, the Court suspects that a different right ultimately may be at

issue in this case. At this stage of the litigation, the Court cannot find that there

are no circumstances under which 3ODLQWLIIV· substantive due process claim might

succeed. The Court acknowledges, however, that this claim presents a close

question.

Because the Court has not defined the claimed fundamental right in this

case, the Court cannot proceed to determine if that right is indeed fundamental by

evaluating whether the right is deeply rooted in the history and tradition of this

Nation such that it is implicit in the concept of ordered liberty. The Court finds

that Plaintiffs state a claim for a substantive due process violation, DQG'HIHQGDQWV·

motion to dismiss Count 3 of 3ODLQWLIIV· Second Amended Complaint

is hereby DENIED.
                 
  

- 27 -

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F. Takings Clause
  
The Fifth Amendment provides that private property may not be taken for
public use without just compensation. U.S. CONST. amend. V, XIV. Defendants
argue that the Act does not take Plaintiff :LOVRQ·V property,13 it merely limits his
ability to live there. Defendants contend that the Act does not restrict Mr. Wilson
from owning, visiting, conducting business upon, leasing, selling, or otherwise
using or enjoying the property. Plaintiffs argue that the Act is a partial regulatory
taking because it prevents them ´IURP living in their homes and forc[es] many to
sell their SURSHUW\µ 3OV· Resp. to 'HIV· Motion to Dismiss, p. 35.)14
The Supreme Court recognized that a regulatory taking could violate the
  
Fifth Amendment in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S. Ct.
  
158, 67 L. Ed. 322 (1922) (noting that ´LI regulation goes too far, it will be
recognized as a WDNLQJµ The Court has not provided specific guidance for
determining when a regulation ´JRHV too IDUµ instead relying on ´HVVHQWLDOO\ ad
hoc, factual LQTXLULHVµ Lucas v. South Carolina Coastal Council, 505 U.S. 1003,
1015, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992) (quoting Penn Central
  
Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S. Ct. 2646, 57 L. Ed. 2d
631(1978)). Certainly, where a regulation ´GHQLHV all economically beneficial or
productive use of ODQGµ a categorical finding that the land has been taken is
     
   13 Defendants correctly note that Mr. Wilson is the only named Plaintiff who is
alleged to own real property. Accordingly, Mr. Wilson is the only named Plaintiff who would have standing to assert a takings challenge to the Act, and the only named Plaintiff who can establish the possession of a property interest. See Givens v. Alabama Dep·t of Corrections, 381 F.3d 1064 (11th Cir. 2004). For purposes of consistency, however, the &RXUWZLOOFRQWLQXHWRXVHWKHWHUP´3ODLQWLIIVµLQWKLVVHFWLRQ   
14 The Court notes that the instant case plainly does not involve a physical taking, or a direct appropriation of property, as to which little analysis is required. Lucas, 505 U.S. at 1014.   
- 28 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g03007 of 4P4ageP2g9IDof 64031
           
appropriate. Lucas, 505 U.S. at 1015. Where, as here, no per se rule applies, the
Court must engage in a factual inquiry, as described in Penn Central. The Court
examines ´>W@KH economic impact of the regulation on the FODLPDQWµ ´WKH extent to
which the regulation has interfered with distinct investment-­backed
H[SHFWDWLRQVµ and ´WKH character of the governmental DFWLRQµ Penn Central, 438
  
U.S. at 124. ´$ ¶WDNLQJ· may more readily be found when the interference with
property can be characterized as a physical invasion by the government . . . than
when interference arises from some public program adjusting the benefits and
burdens of economic life to promote the common JRRGµ Id.
Plaintiffs contend that the Act has forced many property owners from their
homes and that it ´VLJQLILFDQWO\ diminishes the value of >3@ODLQWLIIV· homes and
disrupts their investment-­backed expectatiRQVµ 3OV· Resp. to 'HIV· Motion to
Dismiss, p. 36.) Specifically, Plaintiffs argue that, because they are barred from
living in their residences, the economic value of the residence is reduced. Plaintiffs
contend that, even though they may be able to sell or lease their property, they
will be unable to obtain a fair value for the property because they will be required
to vacate quickly. Defendants argue that the economic impact of the Act is
minimal because Plaintiffs may continue to own the property or they may sell the
property;; in either case, the economic value of the land is not reduced. This Court
agrees with DeIHQGDQWV· position and finds that the economic impact of the Act is
fairly minimal. Plaintiffs are not forced to sell their homes and are not otherwise
deprived of the KRPHV· value because of the Act. The Act limits their ability to use
the property as a residence.
The Court next considers the extent to which the Act interferes with 3ODLQWLIIV· reasonable investment-­backed expectations regarding the property. Defendant argues that 3ODLQWLIIV· investment in their homes is not diminished in
  
   - 29 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g03017 of 4P4ageP3g0IDof 64032
           
that the economic value of the home is not reduced. Plaintiffs contend that they
invested in their property in accordance with the expectation that the property
could be used as a residence. At the time Plaintiffs purchased their homes,
Plaintiffs doubtlessly expected that the properties could be used as residences and
likely invested in the property for the purpose of establishing a residence.
Because the Act prohibits Plaintiffs from using the property for this purpose, it
interferes with their reasonable expectations. The Court notes, however, that
´ZKHUH an owner possesses a full ¶EXQGOH· of property rights, the destruction of
one ¶VWUDQG· of the bundle is not a taking, because the aggregate must be viewed in
its HQWLUHW\µ Andrus v. Allard, 444 U.S. 51, 65-­66, 100 S. Ct. 318, 62 L. Ed. 2d 210
(1979). Accordingly, although the Act interferes with 3ODLQWLIIV· reasonable
investment-­backed expectations, this factor does not weigh strongly in their favor.
Finally, Plaintiffs do not seriously dispute that the State has a strong interest
in preventing sexual abuse and that the purpose of the Act is to limit contact
between registered sex offenders and children, thereby reducing the potential for
recidivism among sex offenders. While Plaintiffs urge the Court to determine
how much of an interest the State has in requiring Plaintiffs to move from their
homes, the Court finds that such a determination is not supported by law. The
nature of the VWDWH·V interest is ´FULWLFDO in determining whether a taking has
RFFXUUHGµ Vesta Fire Ins. Corp. v. State of Florida, 141 F.3d 1427, 1433 (11th Cir.
1998). This factor weighs in favor of Defendants.
  
After weighing these factors, the Court concludes that 3ODLQWLIIV· takings
claim cannot succeed. ´7KH standard for whether regulation effects a taking is
whether the landowner has been denied all or substantially all economically
viable use of his ODQGµ Corn v. City of Lauderdale Lakes, 95 F.3d 1066, 1072 (11th
  
Cir. 1996) (noting that ´>W@KH standard is not whether the landowner has been
  
   - 30 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g03027 of 4P4ageP3g1IDof 64033
           
denied those uses to which he wants to put his ODQGµ Plaintiffs have not been
denied all or substantially all economically viable use of their properties.
Accordingly, the Court finds that Plaintiffs have failed to state a claim pursuant to
the Takings Clause. Count 6 of 3ODLQWLIIV· Second Amended Complaint is
DISMISSED.
G. RLUIPA
  
As previously noted, RLUIPA prevents governments from imposing a
´VXEVWDQWLDO EXUGHQµ on the religious exercise of a person or a religious assembly
by imposing a land use regulation, unless that land use regulation is necessary to
further a compelling state interest. 42 U.S.C. § 2000cc(a)(1). In addition,
governments may not impose land use regulations that treat religious institutions
on less than equal terms with secular institutions. 42 U.S.C. § 2000cc(b)(1).
Defendants argue that 3ODLQWLIIV· RLUIPA claims cannot succeed because the Act
does not regulate land use;; rather, it limits the residences of registered sex
offenders. Defendants contend that land belonging to religious institutions is not
substantially burdened in the exercise of religion because a sex offender cannot
live there.
Although Plaintiffs correctly fault Defendants for failure to comply with the
Local Rules of this Court by not citing any authority to support their position that
3ODLQWLIIV· RLUIPA claims must be dismissed, the Court nonetheless finds that
3ODLQWLIIV· RLUIPA claims cannot succeed because the Act is not a land use
regulation, as defined in RLUIPA. A land use regulation is defined as a zoning or
landmarking law ´WKDW limits or restricts a FODLPDQW·V use or development of land .
. . if the claimant has an ownership, leasehold, easement, servitude or other
property interest in the regulated ODQGµ 42 U.S.C. § 2000cc-­5(5). ´>$@ government
agency implements a ¶ODQG use UHJXODWLRQ· only when it acts pursuant to a ¶]RQLQJ
  
   - 31 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g03037 of 4P4ageP3g2IDof 64034
           
or landmarking ODZ· that limits the manner in which a claimant may develop or
use property in which the claimant has an LQWHUHVWµ Prater v. City of Burnside,
289 F. 3d 417, 434 (6th Cir. 2002). Zoning laws may be generally defined as those
rules that regulate ´XVHV and development by means of zones or GLVWULFWVµ
Artistic Entertainment, Inc. v. City of Warner Robins, 331 F.3d 1196, 1205 (11th
Cir. 2003) (citations and internal marks omitted) (discussing the definition of a
zoning ordinance under Georgia law). The Act cannot be considered a zoning
law, in accordance with the plain meaning of that term. Moreover, the Court
notes that zoning is traditionally a local government function, rather than a state-­
wide exercise.
The Court has found only one interpretation of the term ´ODQGPDUNLQJ ODZµ
in its research of published federal cases. In that case, the Western District of New
York concluded that ´>O@DQGPDUNLQJ laws generally involve the ¶UHJXODWLRQ and
restriction [of] certain areas as national historic landmarks, special historic sites,
places and buildings for the purposes of conservation, protection, enhancement
and perpetuation of those places of natural KHULWDJH·µ Faith Temple Church v.
Town of Brighton, 405 F. Supp. 2d 250, 254 (W.D. N.Y. 2005) (quoting N.Y. Village
L. § 7-­700.) Plainly, the Act does not fall within this definition. Even if the Court
were inclined to define the term ´ODQGPDUNLQJ ODZµ more broadly than the New
York district court, the Act could not be fairly described as a landmarking law.15
  
        
15 Plaintiffs, citing Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004), argue that the ´HTXDO WHUPVµ provision of RLUIPA does not require a showing that the law regulates land use. The Court does not read Midrash to support 3ODLQWLII·V argument. While the ´VXEVWDQWLDO EXUGHQµ provision of RLUIPA describes the scope of its application in terms that do not appear in the ´HTuDOWHUPVµSURYLVLRQERWKSURYLVLRQV prohibit only the imposition or implemental of a ´ODQG use UHJXODWLRQµ Plainly if no land use regulation has been imposed by the government, RLUIPA simply does not afford relief. Such is the case here.   
- 32 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g03047 of 4P4ageP3g3IDof 64035
           
The Court notes that Plaintiffs have not taken the position that the Act should be
considered a landmarking law. Accordingly, insofar as RLUIPA applies only to
zoning or landmarking laws, 3ODLQWLIIV· RLUIPA claims cannot succeed. Count 4
of 3ODLQWLIIV· Second Amended Complaint is hereby DISMISSED. H. Free Exercise Clause16
  
States may not pass laws that prohibit the free exercise of religion. U.S.
CONST. amends. I, XIV. Defendants argue that Plaintiffs are not prohibited from
participating in religious activities on church property but are merely prohibited
from living within 1,000 feet of a church. Defendants contend that the Act does
not restrict 3ODLQWLIIV· ability to exercise their religious beliefs. Plaintiffs argue that
the $FW·V prohibition on living or working within 1,000 feet of a church imposes
an unequal burden on secular and religious organizations, in violation of the Free
Exercise Clause. Plaintiffs urge the application of strict scrutiny and submit that
there is no justification to support treating secular halfway houses differently from
religious halfway houses.
The Free Exercise Clause protects both religious beliefs and religious
practices. Generally, ´D law that is neutral and of general applicability need not
be justified by a compelling governmental interest even if the law has the
incidental effect of burdening a particular religious SUDFWLFHµ Church of Lukumi
Babalu Aye v. City of Hialeah, 508 U.S. 520, 531, 113 S. Ct. 2217, 124 L. Ed. 2d 472
(1993) (citation omitted). As to the neutrality requirement, ´>D@W a minimum, the
protections of the Free Exercise Clause pertain if the law at issue discriminates
against some or all religious beliefs or regulates or prohibits conduct because it is
undertaken for religious UHDVRQVµ Lukumi, 508 U.S. at 532. ´$OWKRXJK a law
  
     
16 The Court notes that Defendants have not moved to dismiss 3ODLQWLIIV· claim that the Act violates the right to freedom of association, U.S. CONST. amend. I.   
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2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g03057 of 4P4ageP3g4IDof 64036
           
targeting religious beliefs as such is never permissible, if the object of a law is to
infringe upon or restrict practices because of their religious motivation, the law is
not QHXWUDOµ Id. at 533. To determine the object of a law, the Court begins by
considering the text itself. Id. In the instant case, the Act prohibits registered sex
offenders from living or working within 1,000 feet of a church. According to
Lukumi, ´D law lacks facial neutrality if it refers to a religious practice without a
secular meaning discernible from the language or FRQWH[Wµ Id. The Act does not
refer to a religious practice without a secular meaning ² indeed, it does not refer to
a religious practice at all.
As to the second requirement of the Free Exercise Clause, the Supreme
Court has stated that ´ODZV burdening religious practice must be of general
DSSOLFDELOLW\µ Lukumi, 508 U.S. at 542 (citing Employment Div., Dept. of Human
Resources of Oregon v. Smith, 494 U.S. 872, 879-­881, 110 S. Ct. 1595, 108 L. Ed. 2d
876 (1990)). Where a law has ´WKH incidental effect of burdening UHOLJLRXVSUDFWLFHµ
´FDWHJRULHV of selection are of paramount FRQFHUQµ Id. The Free Exercise Clause
guarantees ´WKDW government, in pursuit of legitimate interests, cannot in a
selective manner impose burdens only on conduct motivated by religious EHOLHIµ
Id. at 543. To establish a Free Exercise Clause violation, a plaintiff must
demonstrate ´D substantial burden on the observation of a central religious belief
or SUDFWLFHµ Hernandez v. Commissioner of Internal Revenue, 490
U.S. 680, 699, 109 S. Ct. 2136, 104 L. Ed. 2d 766 (1989). The Court finds that the
$FW·V provision prohibiting registered sex offenders from residing within 1,000
feet of a church does not impose a substantial burden on religious practices.
3ODLQWLIIV· argument that the law treats faith-­based halfway houses differently
from secular halfway houses is unpersuasive. The Act does not preclude sex offenders from residing in faith-­based halfway houses, it only provides that those
  
   - 34 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g03067 of 4P4ageP3g5IDof 64037
           
halfway houses cannot be located on church grounds or within 1,000 feet of a
church. Plaintiffs do not allege any particular religious belief that would mandate
the location of a halfway house on church property. The Act similarly does not
preclude Mr. Jones from providing spiritual leadership and assistance to people
released from prison. It does not limit registered sex offenders from attending
church or worship services and does not limit Mr. -RQHV· activities in counseling
and ministering to recently-­released registered sex offenders. It only provides
that Mr. Jones may not house these individuals on church grounds or within 1,000
feet of a church. The Court does not find this restriction to impose a substantial
burden on religious practices such that strict scrutiny would be required.
In contrast to the residency provision, however, the Court finds that
Plaintiffs potentially state a claim for violation of the Free Exercise Clause as to
that portion of the Act that prohibits Plaintiffs from working within 1,000 feet of a
church. This provision would effectively exclude all registered sex offenders from
serving as clergy or ministers in religious organizations. This provision may
operate as a substantial burden on religious practice that does not survive
scrutiny;; however, the Court does not read 3ODLQWLIIV· Second Amended Complaint
as alleging that any named Plaintiff seeks employment in a religious organization
such that a named Plaintiff would have standing to assert this claim. The Court
will nonetheless provide Plaintiffs an opportunity to amend their complaint to
adequately allege standing as to this claim.
Plaintiffs additionally contend that the Act violates ´WKH ministerial
exception of the Free Exercise &ODXVHµ because it interferes with employment
decisions of churches. 3OIV· Resp. to 'HIV· Motion to Dismiss, p. 33.) The
ministerial exception has been described as ´D rule adopted by several circuits that civil rights laws cannot govern church employment relationships with ministers
  
   - 35 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g0307 of 4P4ageP3g6IDof 64038
           
without violating the free exercise clause because they substantially burden
religious IUHHGRPµ Hankins v. Lyght, 441 F.3d 96, 100 (2d Cir. 2006). It has been
applied almost exclusively as a bar to discrimination suits against churches and
religious organizations ² it is an exception to employment discrimination claims.
See Gellington v. Christian Methodist Episcopal Church, 203 F.3d 1299 (11th Cir.
2000) (finding that the Free Exercise Clause prohibits ´D church from being sued
under Title VII by its FOHUJ\µ The &RXUW·V research has failed to reveal any
authority for applying the ministerial exception to invalidate a state statute.
3ODLQWLIIV· Free Exercise claim that is based on the portion of the Act that prohibits
registered sex offenders from living within 1,000 feet of a church is DISMISSED.
The Court will, however, permit Plaintiffs an opportunity to amend their
complaint to state a claim that the portion of the Act that prohibits registered sex
offenders from working within 1,000 feet of a church violates the Free Exercise
Clause.
I. Right to Interstate or Intrastate Travel
  
Defendants argue that, because the Act does not restrict Plaintiffs from
traveling to other states or moving around in any local community for socializing,
shopping, or working, the Act does not violate the right to interstate or intrastate
travel. 'HIV· Brief, p. 31.) Plaintiffs have failed to respond to 'HIHQGDQWV·
argument as to this claim, and, accordingly, have abandoned it. See Local Rule
7.1B;; Roberts v. City of Hapeville, No. 1:05-­CV-­1614-­WSD, 2007 U.S. Dist. LEXIS
  
10508 (N.D. Ga. Feb. 15, 2007);; City of Lawrenceville v. Ricoh Electronics, Inc., 370
  
F. Supp. 2d 1328, 1333 (N.D. Ga. 2005). Even if Plaintiffs had not abandoned this
claim, the Court finds that it is without merit. See Saenz v. Roe, 526 U.S. 489, 499,
119 S. Ct. 1518, 1524, 143 L. Ed. 2d 689 (1999);; Doe v. Moore, 410 F.3d 1337, 1348-­49
  
(11th Cir. 2005);; Doe v. Miller, 405 F.3d 700, 711-­12 (8th Cir. 2005). Count 8 of
  
   - 36 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g03087 of 4P4ageP3g7IDof 64039
           
3ODLQWLIIV· Second Amended Complaint is DISMISSED.
  
J. Bill of Attainder
  
Article I, § 10 of the United States Constitution provides that states may not
pass bills of attainder. Pursuant to this clause, legislatures may not pass
´OHJLVODWLYH acts, no matter what their form, that apply either to named
individuals or to easily ascertainable members of a group in such a way as to
inflict punishment on them without a judicial WULDOµ United States v. Brown, 381
U.S. 437, 448-­48, 85 S. Ct. 1707, 14 L. Ed. 2d 484 (1965). Defendants argue that
because the Act does not inflict punishment, it cannot be an unconstitutional bill
of attainder.
Three requirements must be met before a legislative act will be considered
an unconstitutional bill of attainder: ´VSHFLILFDWLRQ of the affected persons,
punishment, and lack of a judicial WULDOµ Selective Service System v. Minnesota
Public Interest Research Group, 468 U.S. 841, 847, 104 S. Ct. 3348, 82 L. Ed. 2d 632
(1984). In this case, the first requirement is met, insofar as the Act specifically
affects only registered sex offenders. See § 42-­1-­15(e) (noting that the residency
restrictions apply only to individuals required to register as sex offenders under
Georgia law).
The definition of punishment in the Bill of Attainder context is set forth in
  
Nixon v. Administrator of General Services, 433 U.S. 425, 97 S. Ct. 277, 53 L. Ed. 2d
867 (1977). The Court first considers whether the Act ´IDOOV within the historical
meaning of legislative SXQLVKPHQWµ in the context of the history of bills of
attainder Nixon, 433 U.S. at 475. Such historical punishments include death,
imprisonment, banishment, confiscation of property, and employment or
vocational restrictions. Id. at 473-­74. The Court next looks beyond historical
experience to consider whether the law ´UHDVRQDEO\ can be said to further
  
   - 37 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g03097 of 4P4ageP3g8IDof 64130
           
nonpunitive legislative SXUSRVHVµ Id. at 475-­76 (citations omitted). The Court
finally considers whether ´WKH legislative record evinces a congressional intent to
SXQLVKµ Id. at 478. The Court ultimately applies the same analysis here as it
applied in connection with 3ODLQWLIIV· ex post facto challenge. See United States v.
2·1HDO, 180 F.3d 115, 122 n.7 (4th Cir. 1999) (noting that ´LW is apparent that the
Court applies the same test for ¶SXQLVKPHQW· for at least the Ex Post Facto, Double
Jeopardy, and Bill of Attainder Clauses, and for substantive due SURFHVVµ see
also Flemming v. Nestor, 363 U.S. 603, 612, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960)
(applying the same analysis of punishment to ex post facto and bill of attainder
challenges). For the reasons stated in connection with this &RXUW·V analysis of
3ODLQWLIIV· ex post facto challenge to the Act, the Court finds that, when the
allegations in the Second Amended Complaint are viewed in the light most
favorable to Plaintiffs, the Act could be found to inflict punishment.
The Court finally must consider whether the Act inflicts punishment
without a judicial trial. In the instant case, the Act imposes residency restrictions
based on an LQGLYLGXDO·V status as a registered sex offender. The triggering event
for the operation of the Act is the requirement of registration. Prior to imposing
the registration requirement, each Plaintiff was afforded a judicial trial (or was
provided the opportunity to challenge the charges that ultimately required
registration as part of a judicial proceeding). The Court accordingly cannot find
that the Act constitutes punishment that is imposed without the protections of a
judicial trial. Plaintiffs do not specify what would be shown at trial that would be
relevant to the application of the Act. For this reason, 3ODLQWLIIV· bill of attainder
challenge must fail, and the Court DISMISSES this claim, which is contained in
Count 1 of Plaintiffs Second Amended Complaint.
  
           
- 38 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g04007 of 4P4ageP3g9IDof 64131
           
K. Impairment of Contractual Obligations
  
Article I, § 10 of the United States Constitution provides that states may not
pass any law that impairs the obligations of contracts. Defendants argue that
3ODLQWLIIV· claim that the Act impairs the obligation of contracts by forcing them to
break leases cannot succeed because Plaintiffs cannot show a substantial
impairment. Plaintiffs have not responded to this argument, and the Court
accordingly finds that Plaintiffs have abandoned this claim. See Local Rule 7.1B;;
Roberts v. City of Hapeville, No. 1:05-­CV-­1614-­WSD, 2007 U.S. Dist. LEXIS 10508
(N.D. Ga. Feb. 15, 2007);; City of Lawrenceville v. Ricoh Electronics, Inc., 370 F.
Supp. 2d 1328, 1333 (N.D. Ga. 2005).17
Even assuming that Plaintiffs did not abandon this claim, the Court finds
  
that it is due to be dismissed. To determine whether a change in the law
improperly impairs contractual obligations, the Court considers whether that
change ´KDV operated as a substantial impairment of a contractual UHODWLRQVKLSµ
General Motors Corp. v. Romein, 503 U.S. 181, 186, 112 S. Ct. 1105, 1109, 117 L. Ed.
2d 328 (1992) (internal marks and citations omitted). ´7KLV inquiry has three
components: whether there is a contractual relationship, whether a change in law
impairs that contractual relationship, and whether the impairment is VXEVWDQWLDOµ
Romein, 503 U.S. at 186. As the Supreme Court has explained, ´LW is well settled
that the prohibition against impairing the obligation of contracts is not to be read
  
        
17 In addition, Plaintiffs do not clearly state a claim based on the impairment of contracts in their complaint. Although the phrase is mentioned in the heading associated with Count 1 of 3ODLQWLIIV· Second Amended Complaint, it is not referenced in any paragraphs in the text of that Count. The Court does not consider the inclusion of a phrase in a heading sufficient to state a claim as to that issue. Furthermore, Plaintiffs have not included any specific factual allegations addressing the contracts they are alleging to have been impaired by the Act, although Count 1 asserts that Plaintiffs will be forced to break their leases.   
- 39 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g04017 of 4P4ageP4g0IDof 64132
           
OLWHUDOO\µ Keystone Bituminous Coal $VV·Q v. DeBenedictis, 480 U.S. 470, 502, 107
  
S. Ct. 1232, 1251, 94 L. Ed. 2d 472 (1987) (citation omitted).
  
The Court finds that, to the extent that Plaintiffs allege they are parties to
lease agreements, Plaintiffs could establish the existence of a contractual
relationship. To the extent the Act operates to restrict 3ODLQWLIIV· ability to reside in
premises leased for that purpose, the contracts are impaired. The Act ´DOWHU>V@
contractual rights or REOLJDWLRQVµ National R. Passenger Corp. v. Atchison, T. &
S.F.R. Co., 470 U.S. 451, 472, 105 S. Ct. 1441, 84 L. Ed. 2d 432 (1985), because
Plaintiffs may no longer reside at the leased premises, even though the lease
presumably would include the right to reside at the property. The Court
accordingly must consider whether the impairment is substantial.
´7KH severity of the impairment is said to increase the level of scrutiny to
which the legislation will be VXEMHFWHGµ Energy Reserves Group v. Kansas Power
& Light Co., 459 U.S. 400, 411, 103 S. Ct. 697, 74 L. Ed. 2d 569 (1983) (citation
omitted). If contractual obligations are only minimally altered, the claim must
fail, and no additional analysis is required. Allied Structural Steel Co. v.
Spannaus, 438 U.S. 234, 244, 98 S. Ct. 2716, 57 L. Ed. 2d 727 (1978). ´6HYHUH
impairment, on the other hand, will push the inquiry to a careful examination of
the nature and purpose of the state OHJLVODWLRQµ Id. In the instant case, the $FW·V
alteration of 3ODLQWLIIV· contractual right to use leased premises as residences is a
substantial impairment requiring an examination of the nature and purpose of the
legislation.
´,I the state regulation constitutes a substantial impairment, the State, in
justification, must have a significant and legitimate public purpose behind the
regulation . . . such as the remedying of a broad and general social or economic
SUREOHPµ Energy Reserves, 495 U.S. at 411-­12. ´>,@W is to be accepted as a
  
   - 40 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g04027 of 4P4ageP4g1IDof 64133
           
commonplace that the Contract Clause does not operate to obliterate the police
power of the 6WDWHVµ ´>W@KH police power [] is an exercise of the sovereign right of
the Government to protect the lives, health, morals, comfort and general welfare
of the people, and is paramount to any rights under contracts between
LQGLYLGXDOVµ )ODQLJDQ·V Enterprises, Inc. v. Fulton County, Georgia, 242 F.3d 976
(11th Cir. 2001) (citations and internal marks omitted) (Fulton County Code
provision prohibiting the sale and consumption of alcoholic beverages in adult
entertainment establishments did not unconstitutionally impair the obligations of
contracts where the GHIHQGDQWV· leases provided that the premises be used for
topless nudity bar and required the maintenance of a liquor license). In the
instant case, the Act has a legitimate public purpose ² to lessen the potential for
registered sex offenders who are inclined towards recidivism to have contact with
children. The Court must next ´VDWLVI\ itself that the OHJLVODWXUH·V adjustment of
the rights and responsibilities of contracting parties [is based] upon reasonable
conditions and [is] of a character appropriate to the public purpose justifying [the
OHJLVODWLRQ·V@ DGRSWLRQµ Keystone, 480 U.S. at 505 (citations and internal marks
omitted). ´>:@H have repeatedly held that unless the State is itself a contracting
party, courts should properly defer to legislative judgment as to the necessity and
reasonableness of a particular PHDVXUHµ Id. (internal marks and citations
omitted). The Act survives scrutiny under this standard, and the Court will
DISMISS this claim from Count 1 of 3ODLQWLIIV· Second Amended Complaint.
L. Overbreadth/Vagueness The Due Process Clause of the Fourteenth Amendment requires that state legislative enactments be neither impermissibly vague nor overbroad. A statute is unconstitutionally vague if it either ´IDLO>V@ to provide the kind of notice that will enable ordinary people to understand what conduct it SURKLELWVµ or ´DXWKRUL]H>V@
  
   - 41 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g04037 of 4P4ageP4g2IDof 64134
           
and even encourage[s] arbitrary and discriminatory HQIRUFHPHQWµ City of
  
Chicago v. Morales, 527 U.S. 41, 56, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999).18 A
  
law must provide ´IDLU ZDUQLQJµ of proscribed conduct so that citizens (or, in this
case, registered sex offenders) can conform their conduct to the law. Village of
Hoffman Estates v. Flipside Hoffman Estates, Inc., 455 U.S. 489, 503, 102 S. Ct.
1186, 71 L. Ed. 2d 362 (1983);; Morales, 527 U.S. at 58. A statute is
unconstitutionally vague ´RQO\ if the enactment is impermissibly vague in all of
its DSSOLFDWLRQVµ Hoffman Estates, 455 U.S. at 495. A statute that is overbroad
similarly will not survive against a constitutional challenge. ´8QGHU the
overbreadth doctrine, a statute that prohibits a substantial amount of
constitutionally protected [conduct] is invalid on its IDFHµ United States v.
Williams, 444 F.3d 1286, 1296 (11th Cir. 2006);; see also Houston v. Hill, 482 U.S.
104, 114, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).
  
Although Defendants contest Plaintiffs· ability to assert claims that the Act
is vague and/or overbroad, the Court notes that the only mention of these claims
in 3ODLQWLIIV· Second Amended Complaint is in 3ODLQWLIIV· prayer for relief. The
claims are not addressed in the listed Counts of 3ODLQWLIIV· Second Amended
Complaint. As such, to the extent that Plaintiffs assert claims based on these
theories, Plaintiffs have failed to adequately allege these claims. Plaintiffs have
not set forth their basis for alleging that Act is vague and overbroad. In particular,
Plaintiffs failed to allege the particular portions of the Act that Plaintiffs contend
are vague and to identify the constitutionally protected conduct that forms the
grounds for their overbreadth challenge. The Court will permit Plaintiffs to
  
   18 The Court notes that the Morales court considered a vagueness challenge to a
criminal law;; however, the Court finds nothing to indicate that the same analysis would not apply in this case, where a violation of the $FW·V residency restrictions is punishable as a felony with a minimum sentence of ten years.   
- 42 -

2C:1a2s-ecv4-:10161-c9v4--0R0H1C40-D-CRCG DDooccu#m2e1n-5t 10F9iled F0i5le/2d50/132/30P/2g04047 of 4P4ageP4g3IDof 64135
           
amend their complaint to correct these pleading deficiencies and DENIES, at this
time, 'HIHQGDQWV· motion to dismiss these claims.
IV. CONCLUSION
  
'HIHQGDQWV· Motion to Dismiss in Lieu of Answer [Doc. No. 34] and
'HIHQGDQWV· Motion to Dismiss Amended Complaint [Doc. No. 55] are DENIED
as moot. 'HIHQGDQWV· Motion to Dismiss 3ODLQWLIIV· Second Amended Complaint
[Doc. No. 78] is GRANTED in part and DENIED in part, as stated herein. The
Court will permit Plaintiffs to amend their complaint within twenty (20) days of
the date of this Order to assert a claim that the provision of the Act that prohibits
registered sex offenders from working within 1,000 feet of churches violates the
Free Exercise Clause and to assert vagueness and overbreadth claims, as provided
in this Order.
  
  
SO ORDERED this 30th day of March, 2007.
     
   s/ CLARENCE COOPER
  
  
CLARENCE COOPER UNITED STATES DISTRICT JUDGE
                                                              
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 2:12-cv-11194-RHC-DRG Doc # 24 Filed 06/15/12 Pg 1 of 8 Pg ID 643

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOES #1-4 and MARY DOE,

Plaintiffs, v
RICK SNYDER, Governor of the State of Michigan, and COL. KRISTE ETUE, Director of the Michigan State Police, in their official capacities,

No. 2:12-cv-11194 HON. ROBERT H. CLELAND MAG. DAVID R. GRAND

Defendants.

Michael J. Steinberg (P43085) Kary Moss (P49759) American Civil Liberties Union of Michigan Attorneys for Plaintiffs 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6824
Margaret A. Nelson (P30342) Erik A. Grill (P64713) Attorney for Defendants Michigan Department of Attorney General Public Employment, Elections & Tort Div P.O. Box 30736 Lansing, MI 48909 (517) 373-6434

Miriam Aukerman (P63165) American Civil Liberties Union of Michigan Attorneys for Plaintiffs 89 Ionia NW Grand Rapids, MI 49503 (616) 301-0930
Paul D. Reingold (P27594) Michigan Clinical Law Program Attorneys for Plaintiffs 363 Legal Building 801 Monroe Street Ann Arbor, MI 48109 (734) 763-4319
William W. Swor (P21215) Attorney for Plaintiffs 645 Griswold Street, Ste 3060 Detroit, MI 48226 (313) 967-0200
/

DEFENDANTS’ REPLY BRIEF

2:12-cv-11194-RHC-DRG Doc # 24 Filed 06/15/12 Pg 2 of 8 Pg ID 644
1. SORA 2011 does not violate the federal Ex Post Facto Clause. Plaintiffs’ argument is replete with exaggeration as to the effect and impact between 2011 SORA. Plaintiffs ignore the fact prior court reviews rejecting similar ex post facto challenges to Michigan’s SORA examined, for the most part, the same “affirmative obligations, disabilities and restraints” that form the basis for this claim. The interpretation and application of the sex offender registration statutes that now exists demonstrates that neither their purpose nor effect is “punishment” but rather is regulatory in nature to assist and inform both law enforcement and the public in today’s mobile society. A. 2011 SORA is not fundamentally different from the Alaska statute analyzed
in Smith v. Doe. The reporting and verification requirements required in 2011 SORA are essentially the same as those imposed by the Alaska statute construed in Smith v. Doe, 538 U.S. 84 (2004). The one notable exception is the “in-person” reporting. However, Michigan’s registered offenders have been required to report in-person essentially from the inception of these registration requirements in 1995. This requirement does not significantly differentiate 2011 SORA from Smith or any other of the federal cases rejecting ex post facto challenges to sex offender registration statutes. Doe v. Patacki, 120 F.3d 263,1272-1285 (2nd Cir. 1997); Russell v. Gregoire, 124 F.3d 1079, 1084-1083 (9th Cir. 1997); Artway v. Attorney General, 81 F.3d 1235, 1263-1267 (3rd Cir. 1996); Roe v. Officer of Adult Probation, 125 F.3d 47, 53-55 (2nd Cir. 1997); Cutshall v. Sundquist, 193 F.3d 466, 473-477 (6th Cir. 1999). Cases related specifically to Michigan’s statute have also rejected this same challenge. Doe v Kelley, 961 F. Supp 1105, 1109-1112 (W.D. Mich. 1997); Lanni v. Engler, 994 F. sup 849, 854, 855 (E.D. Mich. 1998); Akella v Michigan Dept. of State Police, et. al., 67 F. Supp. 2d 716, 733-734 (E.D. Mich. 1999). Any burden resulting from the in-person requirement is, at most, deminumus.
2

2:12-cv-11194-RHC-DRG Doc # 24 Filed 06/15/12 Pg 3 of 8 Pg ID 645
The substantial differences in 2011 SORA and the prior iterations of Michigan’s registration statute that form the basis for this challenge are: reorganizing the registry into tiers based on the crime of conviction; extending the reporting period for offenders now included in Tier III, the most serious category of offenses, from 25 years to life; and, the additional personal information that is now required – employer’s name and address; internet address and identifiers. Plaintiffs also focus on the Student Safety Zone provisions added to the SORA in 2006 in their ex post facto challenge. M.C.L. 28.73B. (Defs. Ex. A – Comparison of 2011 SORA provisions to pre-2011 version of statute.) Plaintiffs attempt to distinguish 2011 SORA from the significant body of case law rejecting ex post facto challenges to these registration statutes. Yet their argument is principally based on requirements and regulations that pre-dated the 2011 amendment – an amendment required by federal law and which formed the basis of these prior challenges.
B. The requirements of 2011 SORA are not punitive. Plaintiffs’ reliance on the individual statements of legislators as suggesting a punitive intent in enacting these 2011 amendments is misplaced. Federal courts have long rejected reliance on individual legislators’ statements as informative of legislative intent or purpose. Isle Royale Boaters Assoc., et. al. v. Norton, 330 F.3d 777, 784, 785 (6th Cir. 2003). Rather, “words of the statute” itself are the primary focus in determining legislative intent. Id. at 784. Here, the 2011 amendments do not support a finding of punitive intent. Rather, and more reasonably, the 2011 amendments directly address the requirements imposed by the federal law, specifically, 42 U.S.C.A. 16901, et. seq., and the guidelines and requirements established by the United States Attorney General, thereunder. See 42 U.S.C.A. 16912. As further demonstrated below, the
3

2:12-cv-11194-RHC-DRG Doc # 24 Filed 06/15/12 Pg 4 of 8 Pg ID 646
statute’s words clearly indicate the legislature’s intent and purpose to provide a comprehensive, accessible tool for use by law enforcement and the public.
Further, the fact the challenged statute is codified in Chapter 28 of the Michigan Code, which concerns administrative activities of the Michigan State Police, does not inform this analysis either. The statute has always been housed in Chapter 28 which is a civil code. This factor was considered by those courts cited above in analyzing earlier ex post facto changes and concluded no intent to punish could be drawn from this codification. Additionally, the fact the statute imposes criminal sanctions is irrelevant. The statute has always contained criminal penalties. This fact was also rejected as supporting any inference of an intent to punish in those cases analyzing earlier ex post facto challenges to this statute.
C. The Kennedy Factors do not support the conclusion the impact and effects of the 2011 SORA Amendments are punitive.
Plaintiffs’ argument rests principally on the fact they are now classified as Tier III offenders and thus, subject to all “the restrictions” imposed by the statute for life. Significantly, many of the reporting requirements Plaintiffs point to in support of this argument pre-dated the 2011 Amendments. (Defs. Ex. A) The impacts on all “major areas of plaintiffs’ lives” are no different than existed prior to the 2011 amendments, with two principle exceptions – the requirement to provide their employer’s name and address and their internet address and identifier information. Similarly, the 2011 amendments themselves do not trigger a “huge number of additional restrictions under a complex web of other federal, state, or local laws” – the fact each Plaintiffs is a convicted sex offender triggers these additional restrictions and obligations. No “complex web” of other federal, state, or local laws is not created or implicated by 2011 SORA. Rather, these 2011 amendments were required by and in response to federal law.
4

2:12-cv-11194-RHC-DRG Doc # 24 Filed 06/15/12 Pg 5 of 8 Pg ID 647
Further, by reorganizing the registry, 2011 SORA reduced the period of registration for thousands of offenders convicted of Tier I offenses – the least severe offenses requiring registration – and their in-person reporting requirements. 2011 SORA retained the 25 year reporting period and quarterly in-person reporting requirement for Tier II registrants – those convicted of mid-level criminal offenses requiring registration. Reorganizing the registry to reduce the registration and reporting periods for certain offenders; maintaining the requirements for certain offenders and increasing the requirements for those convicted of the most severe offenses relates to the purpose of the statute, the regulatory nature of the registry, and clearly demonstrates a non-punitive intent as certain juvenile and adult offenders’ obligations were reduced. The fact these Plaintiffs may be unlikely recidivists, as they argue, is irrelevant to this analysis. Michigan’s registry is based on the fact of conviction alone, a classification the State may constitutionally draw. Fullmer v. Michigan Dept of State Police, 360 F.3d 579, 582 (6th Cir. 2004).
Plaintiffs also argue implementation of the Student Safety Zone in 2006 distinguishes this case and demonstrates the punitive effect of this Act. The Court should reject this argument first because that provision of the statute was not applied retroactively. The Student Safety Zone Act exempted those registered offenders who were living and/or working within 1000’ of a school on January 1, 2006 or who are within the safety zone because a school relocated or was established within 1000’, and certain juvenile offenders. M.C.L. 28.734 (3) (a), (b); M.C.L. 28.735 (3) (a), (b). Second, Plaintiffs’ facial challenge to this provision does not demonstrate any substantial direct impact or effect on them. These significant differences alone distinguish this case from those relied on by Plaintiffs. Those cases are further distinguished in that their analysis is based on the state constitution or specific federal SORNA requirements, not yet effective, and are
5

2:12-cv-11194-RHC-DRG Doc # 24 Filed 06/15/12 Pg 6 of 8 Pg ID 648
unpublished and thus, not authoritative. See Mikaloff v. Walsh, 2007 WL 2572258 (N.D. Ohio; F.R.St. Charles County Sheriff’s Dept., 301 S.W.3d 56, 61, 62 (Mo. 2010); Elwell v Townsip of Lower, 2006 WL 3797974 (N.J. Super. L). Plaintiffs’ reliance on Doe v Schwarzenegger, 476 F. Supp. 2d 1179 (E.D. Cal. 2009) is also misplaced. That case does not address an ex post facto challenge.
Equally significant to this analysis is the fact Michigan’s Student Safety Zone is not a bar to the registrants’ participation in a child’s education. The registrant is not prohibited from attending parent-teacher conferences or meetings at school or otherwise participating in events that do not involve viewing children. M.C.L. 28.733 (b). Thus, contrary to Plaintiffs’ argument, this statute does not preclude the registrant from participating in their child’s education and school development. Plaintiffs other arguments in reference to the Kennedy Factor are nothing than more than recitations of consequences associated with the fact of their conviction, not their registration. Smith at 101.
Plaintiffs argument the 2011 SORA imposes sanctions historically considered punishment is also without merit. The Act does not impose physical restraint or imprisonment. Smith, at 100. The Act does not provide the public with the means of shaming an offender. Id. at 99. The criminal sanctions available under the Act are imposed only upon a prosecutor’s decision to prosecute and are not as harsh as other penalties imposed in the civil context. Id. at 100. The Act does not restrain the activities sex offenders may pursue “leaving them free to change jobs or residences” – the only limitation being they cannot move to a location or work at a location within a 1000’ feet of a school. Id. at 100. Neither the impact nor effect of registration can be reasonably considered punishment. “Although the public availability of the information may have a lasting and painful impact on the convicted sex offender, these
6

2:12-cv-11194-RHC-DRG Doc # 24 Filed 06/15/12 Pg 7 of 8 Pg ID 649
consequences flow not from the Act’s registration and dissemination provision, but from the fact of conviction, already a matter of public record.” Id. at 101.
Plaintiffs also argue the quarterly reporting and updating requirements are similar to a supervised probation, which is a “traditional” form of punishment. This same argument has repeatedly been rejected by the federal courts in analyzing similar ex post facto challenges as indicated in the case cited above. Further, Plaintiffs characterization of being “supervised” by the police or the State as a result of this activity is baseless. Reporting only requires the preparation and submission of a form with the required information. The registrant is not interviewed. The registrant is not subject to drug or alcohol testing. The registrant does not have to provide details on living arrangements or employment. No limitations are imposed on the registrant’s activities, who he or she lives with, where they work, who they associate with. No verification of the information is done by the police agency. No follow-up with the registrant is conducted. In other words, no one shows up at the residence or employment to verify who they live with, how they live, or that they are in fact employed or what job they do. The police do not and cannot “violate” a registrant and initiate court action.
Finally, Plaintiffs ignore a significant portion of the “Legislative declarations” in their argument. M.C.L. 28.721a provides the sex offenders registration act was enacted “… with the intent to better assist law enforcement officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders.” The provision continues, “[T]he registration requirements of this 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.” 2011 SORA clearly meets this purpose and intent. These legislative choices and the design of the registry do not support a
7

2:12-cv-11194-RHC-DRG Doc # 24 Filed 06/15/12 Pg 8 of 8 Pg ID 650

punitive intent, or a punitive effect. Thus, Plaintiffs have not shown the Act’s effects negate

Michigan’s intent to establish a civil regulatory scheme compliant with federal law.

CONCLUSION

Defendants pray the Court grant this motion, dismiss Plaintiffs complaint and award such

other relief it determines appropriate.

Respectfully submitted,

BILL SCHUETTE Attorney General

Dated: June 15, 2012

(517)

s/Margaret A. Nelson Margaret A. Nelson (P30342) Erik A. Grill (P64713) Attorney for Defendants Michigan Department of Attorney General Public Employment, Elections & Tort Div P.O. Box 30736 Lansing, MI 48909
373-6434

CERTIFICATE OF SERVICE

I hereby certify that on June 15, 2012, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such.

At
(517) Prim (P30342)

s/Margaret A. Nelson Margaret A. Nelson (P30342)
torney for Defendants Michigan Department of Attorney General Public Employment, Elections & Tort Div
373-6434 ary E-mail: nelsonm9@michigan.gov

8

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOES 1-4 and MARY DOE,

Plaintiffs,

v.

Case No. 12-11194

RICHARD SNYDER and COL. KRISTE ETUE,

Defendants. /

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ AMENDED MOTION TO DISMISS

On March 16, 2012, Plaintiffs John Does I-IV and Mary Doe initiated the above-

captioned lawsuit challenging the constitutionality of the Michigan Sex Offender Registry

Act (“SORA” or “Act”), as amended in 2011. Governor Richard Snyder and Colonel

Kriste Etue of the Michigan Department of State Police are named in their official

capacity as Defendants. Plaintiffs seek a declaratory judgment and permanent

injunction. On April 24, 2012, Defendants moved to dismiss the complaint under

Federal Rule of Civil Procedure 12. Plaintiffs responded on May 25, 2012, and

Defendants replied on June 15, 2012. The court heard oral argument on August 8,

2012. For the reasons set forth below, the motion will be granted in part and denied in

part.

I. BACKGROUND

A. Statutory History

Michigan first enacted SORA in 1994 in response to Congress’s Jacob Wetterling

Act. As initially enacted, the Act established a confidential database available only to

law enforcement containing information about sex offenders. The statute applied retroactively to individuals who were convicted before October 1, 1995. Since its adoption SORA has undergone numerous amendments.
In 1997, SORA was amended to require law enforcement agencies to make registry information available to the public during business hours. A 1999 amendment increased the number of offenses for which registration was required and mandated that a less-detailed version of the registry be made available to the public online.
SORA was again amended in 2002, 2004, and 2006. These amendments, among other things, increased reporting requirements for registrants; removed the registration requirement for individuals convicted under the HYTA after October 1, 2004; barred registrants from working, residing, or loitering within 1,000 feet of a school; and created a program whereby members of the public could be notified electronically when a sex offender moved into a particular zip code.
The most recent amendment to SORA came in 2011, which significantly altered the statute to comply with the federal Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16901 et seq. As amended in 2011, SORA now categorizes registrants into three tiers which determine the length of time individuals must register and the frequency with which they must report. Tier classifications are based solely on a registrant’s offense and do not factor in an individualized determination of risk. There is no way to reduce one’s tier classification or to remove oneself from the list. SORA 2011 extended the length of registration for most registrants, and individuals who were assigned to Tier III, Plaintiffs included, are now required to register for life. The 2011 amendment also (1) expanded the in-person reporting requirement to require registrants
2

to report to the police station within three days of establishing any new electronic mail address, instant message address, or other designation used in Internet communications or postings; (2) expanded registrants’ reporting obligations before traveling; and (3) increases the number of times registrants must regularly report inperson each year.
B. Plaintiffs All five Plaintiffs are Michigan residents who are required by law to register as sex offenders and comply with the myriad provisions of SORA. They explain their backgrounds in the complaint. In 1990, when John Doe I was twenty, he armed himself and attempted to rob his former employer, a fast-food restaurant. (Compl. ¶ 16.) In the midst of the robbery, he threatened to kidnap the manager’s 12-year-old son, (Id. ¶ 17), but the manager and the son escaped. Later, John Doe I was apprehended and eventually entered a plea of guilty to armed robbery, weapons charges, and kidnapping, and was sentenced to twenty-to-forty years in prison. (Id. ¶¶ 18-20.) He was released in 2009. (Id. ¶ 22.) Although John Doe I’s criminal offense lacked an overtly sexual component, because he was guilty of kidnapping, he is classified as a Tier III offender under SORA and is required to register as a sex offender for life. (Id. ¶¶ 25-26.) John Does II-IV all had sexual relationships with young girls. (Id. ¶¶ 30, 47, 57.) John Doe II was eighteen years old in 1996 and had a sexual relationship with a fourteen year old. (Id. ¶ 30.) He pled guilty to third degree criminal sexual conduct (which requires sexual penetration) under the Holmes Youthful Trainee Act (“HYTA”). This allowed him to have his case dismissed and his record sealed after completing a
3

two-year trainee period of probation. (Id. ¶¶ 31-32, 35.) An assignment to trainee status under HYTA is not a “conviction” of a crime unless the court revokes the status. (Id. ¶ 33.) Under SORA, John Doe II is classified as a Tier III offender and is required to register as a sex offender for life. (Id. ¶ 42.)
In 1998, when Doe III was nineteen years old, he had a sexual relationship with a fourteen-year-old. (Id. ¶ 47.) He pled guilty to attempted third degree criminal sexual conduct and was sentenced to four years probation under HYTA. (Id. ¶ 50.) During his last year on probation, Doe III failed to register for Michigan’s sex offender registry within the time required and had his status under HYTA revoked. (Id. ¶ 52.) His conviction was then entered. Under SORA, he is classified as a Tier III offender and is required to register as a sex offender for life.
In 2005, when John Doe IV was twenty-three years old, he had a sexual relationship with a fifteen-year-old. (Id. ¶ 57.) He later pled guilty to attempted third degree criminal sexual conduct and was sentenced to five years probation and counseling. (Id. ¶¶ 59, 61.) Under SORA, he is classified as a Tier III offender and required to register as a sex offender for life. (Id. ¶ 63.)
In 2003, Mary Doe was convicted of having a sexual relationship with a fifteenyear-old boy and was sentenced to three years in prison (Id. ¶ 65-66.) She was released after serving seven months, and her sentence was modified to four years of probation and 200 hours of community service. (Id. ¶ 73.) Under the terms of her judicial release, Mary Doe was required to move from Ohio, where she had been convicted, to Michigan. Under SORA, she is classified as a Tier III offender and required to register as a sex offender for life. (Id. ¶ 76.)
4

C. Complaint Plaintiffs claim that the retroactive nature of SORA and its extensive reporting requirements and prohibitions violate their constitutional rights. The complaint alleges eight counts: (1) violation of the Ex Post Facto Clause; (2) violation of Plaintiffs’ fundamental rights to travel; (3) violation of Plaintiffs’ fundamental rights to engage in common occupations of life; (4) violation of Plaintiffs rights to direct the education and upbringing of their children; (5) violation of the First Amendment; (6) violation of the Due Process Clause because the Act is retroactive and “harsh and oppressive”; (7) violation of the Due Process Clause because certain provisions are vague and impossible to comply with; and (8) violation of the Headlee Amendment to the Michigan Constitution.
II. STANDARD When ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court must construe the complaint in a light most favorable to the plaintiff and accept all the factual allegations as true. Evans-Marshall v. Bd. of Educ., 428 F.3d 223, 228 (6th Cir. 2005); Rossborough Mfg. Co. v. Trimble, 301 F.3d 482, 489 (6th Cir. 2002). “[T]he court must draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). The plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Though decidedly generous, this standard of review does require more than the bare assertion of legal conclusions.
5

[A] plaintiff’s obligation to provide the“grounds” of his “entitle[ment] to relief” requires more than labels and conclusi ons, and a formulaic recitation of a cause of action’s elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the complaint’s allegations are true. Id. at 555 (citing Fed. R. Civ. P. 8(a)). Further, the complaint must “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). In application, a “complaint must contain either direct or inferential allegations respecting all material elements to sustain a recovery under some viable legal theory.” Eidson v. State of Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007) (citation omitted). Therefore, “to survive a motion to dismiss, the plaintiff must allege facts that, if accepted as true, are sufficient to raise a right to relief above the speculative level and to state a claim to relief that is plausible on its face.” Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (citations and internal quotation omitted). A court cannot, however, grant a motion to dismiss under Rule 12(b)(6) based upon its disbelief of a complaint’s factual allegations. Twombly, 550 U.S. at 556. “In determining whether to grant a Rule 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account.” Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001) (emphasis omitted) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)).
III. DISCUSSION A. Ex Post Facto Clause
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In moving for dismissal of Count I, Defendants argue that Plaintiffs’ ex post facto claim fails as a matter of law because SORA, as amended in 2011, is not a criminal statute. The Ex Post Facto Clause prohibits retroactive punishment and applies only to criminal statutes and ostensibly civil statutes that are “so punitive in purpose or effect as to negate [the legislature’s] intention to deem it civil.” Kansas v. Hendricks, 521 U.S. 346, 347 (1997).
The first step in analyzing an ex post facto claim is to determine the legislative intent behind the statute; if the purpose is to impose punishment, the ex post facto claim is proved. Smith v. Doe, 538 U.S. 84, 92-93 (2003). If the legislative intent rationally appears to have been other than punitive, the next step is to consider whether the effects of the statute are so punitive as to qualify as ex post facto punishment. Id. at 92. In making this determination, courts must consider seven factors outlined by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963): (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. Id.
As to the legislative intent of SORA, Defendants assert that SORA’s purpose is to promote public safety and community notification, not to punish offenders, and point to federal precedent recognizing the civil intent of prior versions of SORA. (Defs.’ Br.
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Supp. Mot. Dismiss 7); Lanni v. Engler, 994 F. Supp. 849, 855 (E.D. Mich. 1998) (“[T]he purpose of the act was to protect the public, and not to punish sex offenders . . . [and] the historical precedent does not demonstrate an objective punitive purpose.”). Defendants assert that this new amended version is not qualitatively different from the previous versions, and that the legislative intent is and has always been regulatory, not punitive. In their attempt to demonstrate a punitive intent, Plaintiffs point to statements made by individual legislators and the fact that violation of the statute is punished by criminal, not civil, sanctions. (Pls.’ Resp. to Defs.’ Mot. Dismiss 9.) Plaintiffs argue also that the statement of intent attached to the legislation is irrelevant because it was passed many years ago and not by the legislation that passed the 2011 amendments to SORA. (Id. at 8.) The parties differ on whether inclusion in Chapter 28 of the Michigan Code is evidence of civil or criminal intent.
Legislative intent is determined by considering the statute’s text and its structure, and “considerable deference must be accorded to the intent as the legislature has stated it.” Smith, 538 U.S. at 92-93 (quoting Flemming v. Nestor, 363 U.S. 603, 618 (1960)). The first step in the analysis is to ask “whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” Id. at 93. The legislature expressly states its intent for SORA legislation as “to better assist law enforcement officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders.” Mich. Comp. Laws § 28.721a. Plaintiffs ask the court to consider the individual statements of legislators at the time of enactment, but courts are wary of considering the “almost always cacophonous” comments of individual legislators
8

in determining legislative intent. Isle Royale Boaters Ass’n v. Norton, 330 F.3d 777, 784 (6th Cir. 2003). Instead courts should rely primarily “on the words of the statute itself.” Id.
The Supreme Court has recognized that the manner of codification and enforcement procedures are also probative of legislative intent. Smith, 538 U.S. at 94. SORA 2011 is housed in Chapter 28 of the Michigan Code, which is intended “to provide for the public safety” and to create and maintain the state police. MI ST Ch. 28, Refs & Annos. Plaintiffs assert that the criminal sanctions invoked by violation of the statutory regulations indicate a punitive intent. However, “invoking the aid of the criminal process in aid of a statutory regime does not render the statutory scheme itself punitive.” Smith, 538 U.S. at 96. The text, structure, and manner of codification all support the interpretation of SORA as a civil statute, and this determination is in accordance with extensive federal precedent considering the intent of previous versions of SORA. See, e.g., Lanni, 994 F.Supp 855; Akella v. Mich. Dep’t of State Police, 67 F. Supp. 2d 716, 734 (E.D. Mich. 1999).
The next step in determining whether SORA can be considered a criminal statute is to analyze whether the effects of the act are so punitive as to constitute punishment, for which the court is guided by the seven factors outlined in Kennedy. These factors are “neither exhaustive nor dispositive, but are useful guideposts.” Smith, 538 U.S. at 97. Only “the clearest proof” will suffice to overcome a stated civil intent. Id. at 92.
The court first considers whether the sanction involves an affirmative disability or restraint that is more than minor and indirect. Smith, 538 U.S. at 99-100. Plaintiffs argue that the in-person reporting requirement, absent in the statute at issue in Smith,
9

qualifies as a non-minor and direct restraint sufficient to differentiate SORA from the Alaska statute in Smith. (Pls.’ Resp. to Defs.’ Mot. Dismiss 10-13.) They further submit that SORA does more than notify the public of a conviction; it affirmatively bars registrants from living, working, or loitering in large regions of the state, particularly urban areas, and this significantly restricts access to housing and employment and ability to engage in normal activities. (Id. at 11.) The implementation of the student safety zone provisions in 2006 prohibited registrants from “loitering” within 1,000 feet of a school, which includes activities such as watching their children’s sports matches and graduations. Mich. Comp. Laws § 28.734(1)(b); (Pls.’ Resp. to Defs.’ Mot. Dismiss 13.) Plaintiffs argue that these harms flow not from their statuses as sex offenders but directly from SORA, because the explicit bans on where registrants may live and work and on certain activities are not a natural result of a conviction for a sex offense but an affirmative disability imposed by SORA 2011. (Id.) Lastly, Plaintiffs assert that John Doe I, who was convicted of a non-sex offense, and John Doe II, whose record is sealed, would not suffer any continuing consequences stemming from their convictions but for SORA. (Id. 13.)
Plaintiffs’ arguments are not based on the changes enacted in the 2011 amendment, but instead focus on aspects of the legislation that have been in effect for years and have been altered by the amendment only to the extent that they now apply for life. The challenged provisions have repeatedly been upheld against ex post facto challenges by both state and federal courts. See, e.g., Akella, 67 F. Supp. 2d at 73334; People v. Pennington, 240 Mich. App. 188, 193-94 (Mich. Ct. App. 2000). Significantly, the Act does not impose any physical restraint, the most serious of
10

disabilities and restraints. The disabilities and restraints imposed here are less harsh than occupational debarment, which the Supreme Court has held to be non-punitive. See Hudson v. United States, 522 U.S. 93, 105 (1997). Registrants remain free to change employment, move their residence, travel, and move out of the state.
Any disability or restraint imposed by the provisions of the student safety zone are no more than minor and indirect. The statute exempted those already living or working in such zones and those whose home or place of employment enters the zones due to relocation or establishment of a school there. These accommodations significantly negate the harshest potential consequences of the Act. SORA does not restrain the activities of registrants in any way that could be deemed to be more than minor or indirect. See Smith, 538 U.S. at 100.
The next factor in the Kennedy analysis is whether the statute imposes sanctions that have historically been considered punishment. Id. at 168-69. Plaintiffs argue that the conditions imposed by SORA closely resemble probation and parole, banishment and shaming, all of which have traditionally been considered punishment. Plaintiffs liken the residency, occupational, and loitering restrictions to banishment, citing to lower court and unpublished decisions that have accepted this premise. (See Pls.’ Resp. to Defs.’ Mot. Dismiss 14-15.) Plaintiffs’ shaming arguments rely on the fact that the registry lists not only official conviction information, but also labels individuals by tier; includes non-public information; and is sometimes sent out automatically when a registrant moves into the area. Defendants maintain that the requirements are actually significantly less onerous than probation or parole because no questions are asked of registrants, no restrictions on conduct are imposed, and no continuing supervision is
11

involved. (Defs.’ Br. Supp. Mot. Dismiss 9.) Defendants also argue that SORA is not akin to traditional shaming punishments because such punishments, including banishment, involve far more than the dissemination of truthful information, which is not considered a shaming mechanism. See, e.g., Smith, 538 U.S. at 86; Cutshall v. Sundquist, 193 F.3d 466, 475 (6th Cir. 1999). Shaming punishments either held the offender up for face-to-face public ridicule from the community, or they banished them. Smith, 538 U.S. at 97.
Here, SORA does not provide any means for the public to humiliate or shame the offender. Id. at 99. The Act does go further than merely disseminating truthful information but it does not go so far as to expel offenders from the community in any real sense. Restricting offenders’ activities within 1,000 feet of a school zone is not equivalent to running them out of town.
The third Kennedy factor is whether application of the statute requires a finding of scienter. In this case, the statute is triggered only upon a finding of criminal guilt for specified crimes, all of which require a finding of mens rea except for the age-only offenses of which John Doe II and Mary Doe were convicted. However, the Supreme Court in Smith declined to consider this factor, finding it to be “of little weight” because the regulation applies only to past conduct which was and is a crime. Id. at 105.
The fourth Kennedy factor requires the court to determine whether SORA serves any traditional aims of punishment. Significantly, the Supreme Court has stated that a deterrent effect is insufficient to show a punitive purpose, and “to hold that the mere presence of a deterrent purpose renders [a statute] ‘criminal’ . . . would severely undermine the government’s ability to engage in effective regulation.” Id. at 102
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(citation omitted). Plaintiffs argue that SORA is retributive because it is imposed equally upon all offenders based on their past crime, and no consideration is given to their individual risk. (Pls.’ Resp. to Defs.’ Mot. Dismiss 17.) However, it is permissible for Michigan to rely on broad, offense-based categories in applying SORA, and these categories are not retributive simply because they are not based on individual risk. See Conn. Dep’t of Public Safety v. Doe, 538 U.S. 1, 8 (2003); Smith, 538 U.S. at 102. SORA may well have a deterrent effect, but Plaintiffs have proffered no facts to show that it is in any way retributive, and without more, a deterrent effect does not lead to a finding of punitive purpose.
The fifth factor is whether the statute applies to behavior that is already a crime. Plaintiffs interpret this factor to relate to the analysis under factor three, pointing to the fact that individuals must be found guilty of a crime to come under the purview of SORA. However, the court interprets this factor to question the behavior prohibited by the statute; for example, living within 1,000 feet of a school zone. This behavior is not a crime and its proscription in SORA 2011 lends the statute to a regulatory reading. However, the Court in Smith instructed that this factor should not be given much weight in a challenge to sex offender registries. Smith, 538 U.S. at 105.
Factor six, whether the statute is rationally connected to a nonpunitive purpose, is a “most significant” factor in the Kennedy analysis. Id. at 102. Defendants insist that the purpose of the act is to protect the public. (Defs.’ Br. Supp. Mot. Dismiss 7.) There is a clear and obvious connection between the proffered purpose of “public safety and community notification” and the requirements of SORA. Plaintiffs argue that the connection is irrational because sex offender registry laws do not, in fact, reduce
13

recidivism rates, and as a result actually undermine public safety. (Pls.’ Resp. to Defs.’ Mot. Dismiss 17.) Whether these assertions are ultimately true goes to the efficacy of the Act, not whether the statute has a connection to a nonpunitive purpose. In our constitutional structure, where both separation of powers and federalism are paramount principles of the structuring of government, it is not for a federal court to tell a state legislature whether a particular law is effective or not. Here, the State has made clear that SORA is intended to assist law enforcement and members of the community in identifying and monitoring a group of offenders who the legislature has found to have extremely high recidivism rates and whose offenses are uniquely harmful to some of the most vulnerable members of our community. In Smith, the Supreme Court observed that the risk of recidivism posed by sex offenders is “frightening and high.” Smith, 538 U.S. at 103. The federal government and the States have decided to address this legitimate public safety concern by creating sex offender registries. This purpose is nonpunitive.
The last consideration in the Kennedy analysis is whether the Act is excessive in relation to its non-punitive interests. Plaintiffs’ arguments focus on the lifetime reporting requirement for Tier III offenders and the inability to remove oneself from the registry upon a showing of low individual risk. (Pls.’ Resp. to Defs.’ Mot. Dismiss 22.) In considering this final factor, the inquiry is not “whether the legislature has made the best choice possible to address the problem it seeks to remedy,” but “whether the regulatory means chosen are reasonable in light of the nonpunitive objective.” Smith, 538 U.S. at 105. Plaintiffs argue that the registry includes individuals who neither pose a danger to the public nor are likely to reoffend. This argument does not, however, establish
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excessiveness, so long as the regulation is reasonable. Given the high recidivism rates of sex offenders, and the length of time that often passes between offenses, a lifelong registration requirement is reasonable and not excessive in relation to its regulatory and public safety goals. See Smith, 538 U.S. at 104.
The court concludes that SORA, as amended in 2011, is a regulatory, not criminal statute. Accordingly, Count I must be dismissed because SORA does not, as a matter of law, violate the Ex Post Facto Clause.
B. Due Process Clause 1. Fundamental Rights
Although not entirely clear from the complaint, the court construes Plaintiffs’ three fundamental-rights claims, Counts II, III, and IV, as both procedural and substantive due process challenges. In each Count, Plaintiffs allege both that SORA “does not provide any individualized consideration before restricting” the purported fundamental rights, (Compl. ¶¶ 297, 302, 306), and that the Act “is not narrowly tailored to serve a compelling state interest,” (id. ¶¶ 298, 303, 307). The court will address both types of challenges in turn, concluding that Plaintiffs have satisfactorily pled a substantive due process claim in Count IV of the complaint, but have not stated any other claims in Counts II-IV upon which relief can be granted.
a. Substantive Due Process “The substantive component of the Due Process Clause protects ‘fundamental rights’ that are so ‘implicit in the concept of ordered liberty’ that ‘neither liberty nor justice would exist if they were sacrificed.’” Doe v. Mich. Dep’t of State Police, 490 F.3d 491, 499 (6th Cir. 2007) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
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These fundamental rights include “the rights to marry, to have children, to direct the education and upbringing of one’s children, to marital privacy, to use contraception, to bodily integrity, and to abortion.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (citations omitted). In determining whether a particular right is fundamental, the court must “carefully define the asserted right and then ask whether it is ‘deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.’” Johnson v. City of Cincinnati, 310 F.3d 484, 495 (6th Cir. 2002) (quoting Glucksberg, 521 U.S. at 721). “Legislation that infringes on a fundamental right is reviewed under the strict-scrutiny test and will be invalidated unless it is ‘narrowly tailored to serve a compelling state interest.’” Id. (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)). Where such a right is not implicated, the statute will withstand scrutiny so long as it is rationally related to a legitimate governmental purpose. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446 (1985).
The complaint identifies three purported rights infringed on by SORA: (1) the right to travel (Count II); (2) the right to engage in common occupations of life (Count III); and (3) the right to direct the education and upbringing of one’s children (Count IV). In determining whether each of these claimed rights is fundamental, the court must not forget the Supreme Court’s cautionary statement that it has “always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Glucksberg, 521 U.S. at 720.
i. Right to Travel 16

First, Plaintiffs argue that numerous in-person reporting requirements of SORA and the prohibition against loitering in student safety zones infringe on a generalized “right to travel.” Neither the Supreme Court nor the Sixth Circuit has recognized such a generically defined fundamental “right.” Instead the Supreme Court has found a fundamental right to interstate travel that is comprised of three distinct components: (1) “the right of a citizen of one State to enter and to leave another state”; (2) “the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State”; and (3) “for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” Saenz v. Roe, 526 U.S. 489, 500 (1999). And the Sixth Circuit, in the absence of any express statement by the Supreme Court, has also recognized a fundamental right to intrastate travel, which it found to include the “right to travel locally through public spaces and roadways.” Johnson, 310 F.3d at 498. Accordingly, whether Count II states a substantive due process claim turns not on the question of whether SORA infringes on a general “right to travel,” but instead whether the Act’s in-person reporting requirements and loitering prohibition infringe on Plaintiffs’ fundamental rights to interstate—and intrastate—travel as these rights have been defined by the Supreme Court and the Sixth Circuit. As a matter of law, they do not.
As to the in-person reporting provisions, Plaintiffs appear to concede that none of the three components identified as comprising the right to interstate travel are implicated by the provisions. SORA does not create any actual barriers preventing Plaintiffs from entering or exiting the State, nor does it “directly impair the exercise of the right to free interstate movement.” Saenz, 526 U.S. at 501. Neither does the Act
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affect Plaintiffs’ right to be welcomed as a visitor or become a permanent resident in another state. Plaintiffs instead argue that the inconveniences created by in-person reporting provisions make “lawful out-of-state travel nearly impossible.” (Pls.’ Resp. to Defs.’ Mot. Dismiss 24.)
“Mere burdens on a person’s ability to travel from state to state are not necessarily a violation of their right to travel.” Doe v. Moore, 410 F.3d 1337, 1348 (11th Cir. 2005) (citing Saenz v. Roe, 526 U.S. 489, 499 (1999)). In Shapiro v. Thompson, the Supreme Court held that “our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.” 394 U.S. 618, 629 (1969) (emphasis added). Although the Act imposes some burdens on registrants who wish to travel for extended period of times, the burdens cannot be fairly characterized as substantial or unreasonable.
SORA’s requirement that a registrant intending to reside at a temporary residence for more than seven days report the name and address of such residence and the dates the lodging will be used, see Mich. Comp. Laws §§ 28.725(1)(e), .728(1)(e), does not, as Plaintiffs contend, make out-of-state travel impossible. It merely requires more advanced planning and less spontaneity on the part of a traveling registrant. In Moore, the Eleventh Circuit upheld the constitutionality of a similar temporary residency reporting provision in Florida’s sex offender registry statute, finding that any burden imposed on a registrant’s right to travel was not unreasonable in view of the state’s interest behind the requirement. See 410 F.3d at 1348-49; see also Doe v. Miller, 405 F.3d 700, 709-14 (8th Cir. 2005) (holding that in-person reporting
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requirements in Iowa sex offender registry statute did not infringe on right to interstate travel); Doe v. Nebraska, 734 F. Supp. 2d 882, 929 (D. Neb. 2010) (holding that inperson reporting requirements in Nebraska sex offender registry statute did not create an actual barrier to travel). Specifically, the Eleventh Circuit held that “[t]he state has a strong interest in preventing future sexual offenses and alerting local law enforcement and citizens to the whereabouts of those that could reoffend,” and without such a reporting requirement “sex offenders could legally subvert the purpose of the statute by temporarily traveling to other jurisdictions for long periods of time and committing sex offenses without having to notify law enforcement.” Id. Moore’s reasoning is persuasive, and the court concludes that the temporary residency reporting provision does not infringe a registrant’s right to interstate travel, or intrastate travel for that matter. Moreover, the temporary residency reporting requirement is reasonably related to the State’s legitimate interest in preventing future sexual offenses by maintaining a current and accurate registry.
Plaintiffs also argue that SORA’s quarterly reporting requirement, see Mich. Comp. Laws § 28.725a(3), is unreasonably burdensome because they “can never take a trip during the first 15 days of January, April, July and October (their required reporting periods), even if it were to obtain medical treatment or attend to a dying relative in another city.” (Pls.’ Resp. to Defs.’ Mot. Dismiss 24.) It is unclear how Plaintiffs arrive at this conclusion. SORA itself certainly does not impose such a bar. And the plain language of § 28.725a(3) makes clear that a registrant need only report once during the quarterly reporting periods. See Mich. Comp. Laws § 28.725(a)(3) (“A tier III offender shall report not earlier than the first day or later than the fifteenth day of each April, July,
19

October, and January after the initial verification or registration.”). Thus, a registrant could, for example, choose to satisfy § 28.725a(3) by reporting on the first day of April and would then have the fourteen days between April 1 and 15 to travel. Plaintiffs’ proffered hypothetical that a traveling registrant may face criminal charges if he or she unexpectedly experiences weather delays or a car accident and is thus unable to return to report in time is unpersuasive. Such an unlikely event can be easily avoided with minimal prospective planning on the part of the registrant. No reasonable person can read the quarterly reporting provision of SORA and conclude that it prevents all travel during the enumerated reporting periods. At most, the provision imposes only a de minimis, incidental burden on registrants who wish to travel during these periods. It does not infringe upon any right to travel, and it is rationally related to the State’s legitimate interest in maintaining an accurate and current registry.
In addition to objecting to the Act’s in-person reporting requirements, Plaintiffs argue that SORA’s prohibition against “loitering” in student-safety zones substantially burdens their right to travel by restricting their freedom of movement. The loitering prohibition, however, imposes neither a substantial burden on Plaintiffs’ right to interstate travel nor to “travel locally through public spaces and roadways,” Johnson, 310 F.3d at 498. The Act defines “loiter” as “remain[ing] for a period of time and under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors,” Mich. Comp. Laws § 28.733(b), and “student safety zone” as “the area that lies 1,000 feet or less from school property,” id. § 28.733(f). With these defined terms in mind, § 28.734(1)(b) does not restrict registrants from
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entering or traveling through student-safety zones, but instead, it regulates the type of activity registrants may engage in when they are within 1,000 feet of school property.
Plaintiffs’ reliance on Johnson for the proposition that “due process . . . demands individualized consideration before an individual’s right to localized travel can be restricted,” 310 F.3d at 504, is misplaced. In Johnson, the City of Cincinnati enacted an ordinance completely excluding individuals “for up to ninety days from the public streets, sidewalks, and other public ways in all drug-exclusion zones if the individual is arrested or taken into custody within any drug-exclusion zone for one of several enumerated drug offenses.” Id. at 487 (internal quotation marks omitted). Finding this absolute bar constitutionally suspect, the Sixth Circuit first observed that “the right to travel locally through public spaces and roadways is essentially a right of access.” Id. at 503. The court went on to conclude that the city ordinance infringed upon the plaintiff’s fundamental right to intrastate travel because it denied access to the drug-exclusion zones “without regard to [the plaintiff’s] reason for travel in the neighborhood,” and meted out absolute exclusion from the zones “without any particularized finding that a person is likely to engage in recidivist drug activity” in the zones. Id. As the court observed above, the prohibition against loitering in student-safety zones does not deny Plaintiffs’ access to the zones, the fundamental concern underlying Johnson. They are free to enter and pass through such zones and must only avoid acting in a lingering manner that would cause a reasonable person to conclude that their primary purpose for being in the zones is to observe or make contact with minors. The prohibition is qualitatively different than the absolute bar at issue in Johnson and is tailored to prohibit only the type of conduct the state has reasonably identified as creating potential harm to
21

children. The prohibition does not offend due process or substantially burden Plaintiffs’ rights to interstate or intrastate travel.
ii. Right to Engage in Common Occupations of Life In Count III, Plaintiffs claim that SORA infringes on their fundamental right “to engage in the common occupations of life.” While the “freedom to choose and pursue a career, ‘to engage in any of the common occupations of life,’ qualifies as a liberty interest which may not be arbitrarily denied by the State,” Wilkerson v. Johnson, 699 F.2d 325, 328 (6th Cir. 1983) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)) (citation omitted), there is no “general right to private employment.” Cutshall v. Sundquist, 193 F.3d 466, 479 (6th Cir. 1999); c.f. Mederios v. Vincent, 431 F.3d 25, 32 (1st Cir. 2005) (“The right to ‘make a living’ is not a ‘fundamental right,’ for either equal protection or substantive due process purposes.”). Here, the right to freely choose an occupation cannot serve as a satisfactory constitutional foundation for Plaintiffs to construct their argument that SORA, by prohibiting them from working within 1,000 feet of student-safety zones and by stigmatizing them as undesirable and dangerous, creates “wholesale barrier[s]” to gainful employment. A barrier to employment in the economy as a whole is distinct from the freedom to choose a particular career or profession. Thus, while one’s status as a sex offender no doubt makes employment more difficult to secure as a practical matter, Plaintiffs have not shown that SORA implicates the right to “engage in common occupations of life” by barring them from freely electing a particular career. This distinction between barriers to employment, on the one hand, and regulation barring an individual from choosing a particular career or occupation, on the other, is
22

why Plaintiffs’ reliance on Schware v. Bd. of Bar Examiners, 353 U.S. 232 (1957) and Hampton v. Mow Sun Wong, 426 U.S. 88 (1976), is misplaced. The three purported barriers to employment complained of by Plaintiffs are fundamentally different to the regulation held unconstitutional in Hampton and the New Mexico Supreme Court’s denial of the plaintiff’s application to take the bar examination in Schware. In both instances, the governmental action operated to bar either a discrete class of people or an individual from pursing specific professions or occupations. See Hampton, 426 U.S. at 102; Schware, 353 U.S. at 246-47. For example, in Hampton, the Supreme Court held unconstitutional a civil service rule barring all non-citizens from employment in the federal civil service system, concluding that no proffered national interests could justify a rule making ineligible a discrete group of individuals “for employment in a major sector of the economy . . . on a wholesale basis.” 426 U.S. at 102. As the court observes above, SORA neither bars on a wholesale basis, or otherwise, any class of individuals from a particular occupation or sector of the economy, nor does it impose any standards or prerequisites for entering particular occupations. Instead, SORA contains only one affirmative limitation on registrants seeking employment, that being the prohibition against obtaining work in a student-safety zone. This geographic restriction has been narrowly tailored to serve the legitimate interest of the State of inhibiting future sexual offenses, particularly against children, while not limiting the ability of Plaintiffs to seek and obtain any type of employment outside the student-safety zones. See Mich. Comp. Laws § 28.734(1)(a). Although this prohibition imposes restrictions on where an individual works, it cannot be said to implicate Plaintiffs’ right to choose an occupation or career.
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Plaintiffs also assert that SORA burdens their ability to secure employment because the Act “stigmatizes all registrants as dangerous” and deters employers from hiring them because the employers’ business addresses are posted in the Registry. While individuals identified as sex offenders experience stigmatization, Plaintiffs have not shown that this stigma implicates the fundamental right they claim is violated by SORA, i.e., the right to freely choose and pursue an occupation or career.
Accordingly, the court finds that the complaint has not alleged facts that, when accepted as true, could establish an infringement of the fundamental right to engage in the common occupations of life.
iii. Right to Direct Education and Upbringing of Children Plaintiffs’ final fundamental rights claim is that SORA severely impedes their ability to raise and educate their children because the prohibition against “loitering” in student-safety zones prevents them from “observing their own children in the very activities that are central to their children’s lives.” (Pls.’ Resp. to Defs.’ Mot. Dismiss 27.) While recognizing the existence of a constitutionally-protected liberty interest in raising and directing the education of one’s children, Defendants argue that such a right is not absolute and, in light of the State’s compelling interest in protecting children, SORA does not infringe on this fundamental right. The Supreme Court on numerous occasions has made clear that “the interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme Court].” Troxel v. Granville, 530 U.S. 57, 65 (2000); see also Lassiter v. Dep’t Soc. Servs., 452 U.S. 18, 27 (1981) (“[A] parent’s desire for and right to ‘the companionship, care, custody and management
24

of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’” (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972))). Despite recognizing this abstract liberty interest in familial integrity and association, “the Supreme Court has yet to articulate the parameters of this right.” Kottmyer v. Maas, 436 F.3d 684, 690 (6th Cir. 2006). In Kottmyer, however, the Sixth Circuit made clear that the right is neither absolute nor unqualified and is limited by a state’s “equally compelling governmental interest in the protection of children, particularly where the children need to be protected from their own parents.” Id. (citing Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir. 1987)).
Defendants acknowledge that the prohibition against loitering in student-safety zones bars Plaintiffs from watching, observing, or participating in their children’s extracurricular school activities, such as sporting events and plays, because the primary purpose of attending these activities is to observe minors. They argue, though, that this prohibition is a “minimal and indirect” restriction on Plaintiffs’ ability to direct the education and upbringing of their children, and that SORA imposes no other burdens on a registrant’s ability to participate and control his or her child’s education or upbringing. Accordingly, it is their contention that the loitering prohibition does not infringe upon Plaintiffs’ fundamental right to familial association.
Based on the complaint’s allegations, the prohibition does, or may do, more than bar Plaintiffs from attending their children’s school-related events. The prohibition appears to prevent Plaintiffs from engaging in a plethora of activities closely related to the upbringing of their children. For example, registrants who take their children to a park or playground within 1,000 feet of school property or who walk their children to
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school could, in theory, violate the loitering prohibition, especially in light of the State’s concession that attending a child’s play constitutes forbidden loitering, because a reasonable person could view the primary purpose of these activities to be the observation of their children interacting with other minors. And even accepting Defendants’ contention that the prohibition does not infringe on a registrant’s ability to make decisions related to where his or her child attends school or what activities in which the child will participate, it remains true that the liberty interest recognized by the Supreme Court comprises more than merely the ability to make some decisions for one’s children. In Lassiter, the Court noted that the right also includes companionship and care. 452 U.S. at 27. At least at this stage of the litigation, Plaintiffs have satisfactorily alleged that the loitering prohibition, which does not contain any exemption for parental activities, may be proven to infringe upon their fundamental right to direct and participate in their children’s education and upbringing.
Because Defendants have not shown that the provision withstands strict scrutiny, dismissal of the Count is not appropriate. To be sure, the State has a compelling interest in protecting minors from sexual abuse. But Defendants have not established that the prohibition is narrowly tailored to this interest. In their motion, they simply allege that the provision “passes strict scrutiny because it is narrowly drawn and rationally related to a compelling government interest.” (Defs.’ Br. Supp. of Mot. Dismiss 17.) This passing assertion, without more, does not demonstrate that the loitering prohibition is actually narrowly tailored to the State’s interest and fails to explain why a less restrictive prohibition, one that, for example, includes a limited exemption for
26

parental activities, would not effectively achieve the State’s interest. Factual development is warranted.
b. Procedural Due Process To the extent that Counts II, III, and IV challenge SORA as violating procedural due process because the Act does not provide for any individualized determinations before restricting liberty or property interests, such a challenge is foreclosed by Conn. Dep’t of Public Safety v. Doe, in which the Supreme Court held that “[s]tates are not barred by principles of ‘procedural due process’ from deciding to publicly disclose the registry information of all sex offenders—currently dangerous or not.” 538 U.S. 1, 7-8 (2003). The Sixth Circuit confirmed this bar as applied to Michigan’s SORA in Doe v. Mich. Dep’t of State Police, when it held that “[a]ny challenge to the SORA that sounds in procedural due process is . . . foreclosed.” 490 F.3d at 502.
2. Retroactivity In addition to challenging SORA as violating the Ex Post Facto Clause of the Constitution, Count VI of the complaint alleges that the 2011 amendment to the Act violates the Due Process Clause because it is “harsh and oppressive” retroactive legislation. Plaintiffs identify three particular retroactive aspects of SORA that purportedly contravene the Due Process Clause: (1) the application of SORA to John Doe I whose 1990 conviction for a non-sexual offense occurred before the creation of the Act; (2) the application of SORA to John Doe II whose plea agreement under HYTA allegedly included a promise of privacy; and (3) the 2011 Amendment’s extension of Plaintiffs’ registration periods from twenty-five years to life which applies retroactively to all registrants.
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Although the Supreme Court has recognized that “[t]he Due Process Clause . . . protects the interests in fair notice and repose that may be compromised by retroactive legislation . . . [and] a justification sufficient to validate a statute’s prospective application under the Clause may not suffice to warrant its retroactive application,” Landgraf v. USI Film Products, 511 U.S. 244, 266 (1994), “due process is satisfied ‘simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose.’” Franklin Cnty. Convention Facilities Auth. v. Am. Premier Underwriters, Inc., 240 F.3d 534, 550 (6th Cir. 2001) (quoting Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 730 (1984)); c.f. Doe v. Nebraska, 734 F. Supp. 2d at 932-33 (holding that Nebraska’s sex offender registration statute did not violate due process because “[i]t is reasonable to conclude that retroactive application of SORA furthers the public safety purpose of the legislation”).
Here, the court finds, as a matter of law, that retroactively applying SORA to John Does I and II is justified by a legitimate legislative purpose. In view of the Sixth Circuit’s holding in Doe v. Mich. Dep’t of State Police, the State could rationally conclude that to effectuate the stated purpose for creating and maintaining SORA, namely “to better assist law enforcement officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders,” Mich. Comp. Laws § 28.721a, the provisions of the Act must apply retroactively to individuals who earlier pled guilty to the offenses enumerated in the Act or who were sentenced under the HYTA. See Doe v. Mich. Dep’t of State Police, 490 F.3d at 501 (holding, with some reservations, that (1) although “the
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interaction of the SORA and the HYTA abrogates [the agreement by the State to seal the records of] youthful trainees charged with sex offenses prior to October 1, 2004[,] . . . [it] does not rise to the level of a substantive due process violation” and (2) that the application of SORA to plaintiffs was constitutional because “the rationale articulated in the statute itself satisfies the rational-basis standard”).
However, at this early stage in the litigation, the court is unable to determine whether retroactively extending the registration period of Plaintiffs from twenty-five years to life is justified by a legitimate legislative purpose. Defendants argue that the extension is rationally related to “conforming the State’s registry to federal law and that of other State’s [sic] creating a more uniform system for law enforcement, and public notification.” (Defs.’ Br. Supp. Mot. Dismiss 19.) There is no way for the court to know, without venturing far outside the scope of the complaint, whether the extension to the registration period has been done to conform with federal law or to create a more uniform national sex offender registry system. One would assume, for example, that the goal of uniformity would not be a rational legislative purpose if a review of other states’ sex offender registry statutes show that registration periods have been shortened or that other states do not require life-time registration. It is premature to make a determination on whether Defendants’ justifications for the extensions constitute a rational legislative purpose.
The court will therefore dismiss Count VI as it applies to the retroactive application of the Act to John Does I and II but deny Defendants’ motion as it applies to the extension of Plaintiffs’ registration periods.
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3. Vagueness, Impossibility, and Strict Liability In Count VII, Plaintiffs claim that many of SORA’s reporting requirements and prohibitions violate due process because they are vague or impossible to comply with, and in many cases, the Act imposes strict liability for any violations. In seeking dismissal of this Count under Rule 12, Defendants do not specifically address any of the requirements or prohibitions Plaintiffs provide as examples of vagueness, impossibility, or strict liability, and instead summarily reject Plaintiffs’ contentions because the reporting provisions have been in effect for several years and Plaintiffs have apparently complied with them. Defendants also contend that SORA does not impose strict liability for violations of the Act and instead incorporates a willful mens rea requirement. In reviewing the complaint and briefing, the court concludes that Plaintiffs have pled a claim under the Due Process Clause that is plausible on its face. Courts apply a two-part test to determine whether a law is unconstitutionally vague. First, the law must give a person “of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). And second, “[t]he standards of enforcement must be precise enough to avoid ‘involving so many factors of varying effect that neither the person to decide in advance nor the jury after the fact can safely and certainly judge the result.” Id. (citing Cline v. Frink Dairy Co., 274 U.S. 445, 465 (1927)). Although the complaint proffers approximately a dozen examples of vague reporting requirements and prohibitions, Plaintiffs claim with respect to § 28.725(1)(g), which requires a registrant to “report in person and notify the registering authority . . . immediately after . . . the individual purchases or begins to regularly operate any
30

vehicle,” demonstrates why dismissal of Count VII on a Rule 12 motion is not presently warranted. Finding that dismissal is premature, though, in no way suggests that each of the provisions alleged to be vague by Plaintiffs will ultimately prove to be violative of the Due Process Clause. Instead, the court simply concludes that a fuller examination by both the court and the parties is necessary.
The term “regularly,” which triggers in-person reporting under § 28.725(1)(g) is not defined in the statute, and both John Doe IV and Mary Doe, who say that they frequently borrow friends’ and relatives’ vehicles, contend that they are unable to determine at what point their use of borrowed vehicles becomes “regular” so as to require in-person reporting. (Compl. ¶¶ 218, 220.) “Unless they are otherwise defined, the words in a statute ‘will be interpreted as taking their ordinary, contemporary, common meaning.’” Deutsche Bank Nat’l Trust Co. v. Tucker, 621 F.3d 460, 463 (6th Cir. 2010) (quoting United States v. Plavcak, 411 F.3d 655, 660 (6th Cir. 2005)). Merriam Webster’s Collegiate Dictionary defines “regularly,” in relevant part, as “on a regular basis: at regular intervals.” Neither this definition nor the relevant definition of the word “regular,” defined as “recurring, attending, or functioning at fixed or uniform intervals,” appear to provide an individual of ordinary intelligence a reasonable opportunity to know when he or she must report their use of a vehicle. Nor does the word “regularly,” without some additional elaboration of its meaning, constitute a precise enough standard so as to avoid arbitrary enforcement by the State. This second point is illustrated by the complaint’s averment that John Doe IV was told by police officials that borrowing a car three times is the threshold for regular operation. (See Compl. ¶ 31.) There is no explanation in either the complaint or the attached exhibits, and
31

Defendants offer none in their briefing, of how police could have arrived at the conclusion that the borrowing of a vehicle three times equals regular operation. If the individual police officers arrived at this conclusion on their own, the reporting provision certainly raises red flags. On the other hand, and only hypothetically, if police based this three-event standard on some formal guidance published by the State and made available to the public, the vagueness objection to § 28.725(1)(g) may be obviated. A more robust factual record is essential in this regard. However, the court cannot dismiss Count VII simply because Defendants contend that the challenged provisions have been in effect for several years and Plaintiffs have allegedly satisfied the provisions.
C. First Amendment Count V states a First Amendment claim that is plausible on its face. Plaintiffs identify §§ 28.727(1)(i) and 28.725(1)(f) as two provisions that require them to report information about their online accounts and activities. Section 28.727(1)(i) requires a registrant initially registering under the Act to provide “[a]ll 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 electronic mail address or instant messaging system.” Section 28.725(1)(f) additionally requires registrants to “report in person and notify the registering authority . . . immediately after . . . [t]he individual establishes any electronic mail or instant message address, or any other designations used in internet communications or postings.” Defendants contend that these provisions neither regulate nor chill registrants’ speech. Addressing this second contention first, whether these provisions chill a
32

registrant’s speech is an issue that deserves more considered reflection than the issue is accorded in the single sentence in Defendants’ motion. The court will not accept a baldly asserted legal conclusion when the complaint specifically alleges that the reporting of internet account modifiers has resulted in at least one of the Plaintiffs refusing to use the internet. (See Compl. ¶ 204) (“ [John Doe IV] does not use the Internet because he would be required . . . to register all email and Internet identifiers, and would need to report constantly in order to use different websites with different user-names.”).
Additionally, without further information, it is not at all clear to the court how the provisions interact with registrants’ ability to use the internet as a medium to engage in protected speech. Particularly of interest is what the State does with the information provided. In Doe v. Nebraska, the court denied summary judgment to both the plaintiffs and the defendants on a First Amendment challenge to a similar provision in the Nebraska sex offender registry statute, concluding that “[t]he parties have not given me an undisputed record of material that explains how these . . . statutes would actually work in practice and without such a record I cannot determine the implications of this statute on Plaintiffs’ First Amendment rights.” 734 F. Supp. 2d at 911.
Assuming, arguendo, that the provisions do constitute content-neutral regulations on Plaintiffs’ speech, the court would then need to determine whether the provisions are narrowly tailored to serve a significant governmental interest and whether they leave open alternative channels for communication of information. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Here again, additional information on the actual operation of the provisions is necessary to determine whether they are narrowly
33

tailored. Doe v. Nebraska provides an example illustrating the difficulty of determining whether an online-identifiers reporting requirement is narrowly tailored without any background on the implementation of the provisions: “[O]ne wonders whether a sex offender’s posting to a blog site maintained by a law professor for the purpose of discussing sentencing issues, where the posting decried sex offender registration laws, would be covered by the statute and thus reportable. If so, one wonders whether the foregoing statute is narrowly tailored.” 734 F. Supp. 2d at 912 (footnote omitted).
Without additional briefing and further information on the operation of the provisions, the court is unable to determine whether the provisions implicate registrants’ First Amendment rights. Dismissal under Rule 12 is inappropriate because Plaintiffs have, at a minimum, pled factual allegations demonstrating that relief under the Count is plausible on its face.
D. State-law Headlee Amendment Finally, Defendants seek dismissal of Count VIII of the complaint which claims that SORA violates the Headlee Amendment to the Michigan Constitution. Defendants argue that the claim does not satisfy the supplemental jurisdiction requirements of 28 U.S.C. § 1367, and even if it does, the complaint’s allegations fail to state a claim under the Amendment. The Headlee Amendment provides, in relevant part, that “[a] new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs.” Mich. Const. art. IX, § 29. Here, Plaintiffs allege that SORA, as amended in 2011, violates the Amendment
34

because it imposes increased requirements and activities on local law enforcement agencies without “mak[ing] or disburs[ing] a state appropriation to local governments that is sufficient to cover the necessary increased costs imposed on local governments under SORA.” (Compl. ¶ 331.)
Even assuming, arguendo, that Count VIII states a claim under Headlee and § 1367(a)’s supplemental jurisdiction standard is satisfied, the court will decline to exercise supplemental jurisdiction on the grounds that the claim raises a “novel or complex issue of State law,” 28 U.S.C. § 1367(c)(1), and the claim presents other “compelling reasons” to decline jurisdiction under § 1367(c)(4). The court is well aware of its obligation to exercise the jurisdiction granted to it. However, Count VIII is unlike any of the other seven counts in the complaint. Instead of asking the court to review whether SORA violates rights guaranteed by the United States Constitution, Count VIII asks the court to apply a state-law fiscal appropriation and budget-setting provision imposing affirmative duties on the state legislature. The court is keenly cognizant of federalism concerns raised by setting out to examine whether the Michigan Legislature is complying with appropriation provisions in the Michigan Constitution. Accordingly, in the context of this case, where the predominant challenge to SORA is based on alleged infringement of individual rights guaranteed by the United States Constitution, the court should, and will, decline supplemental jurisdiction over Count VIII.
IV. CONCLUSION For the reasons set forth above, IT IS ORDERED that Defendants’ amended motion to dismiss [Dkt. # 14] is GRANTED IN PART and DENIED IN PART. It is GRANTED with respect to Counts I, II, III, and VI inasmuch as it applies to the
35

retroactive application of SORA to John Does I and II. Each of these Counts (or portions thereof) are DISMISSED WITH PREJUDICE. It is also GRANTED with respect to Count VIII, which is DISMISSED WITHOUT PREJUDICE. It is DENIED with respect to Counts IV, V, VI inasmuch as it applies to the retroactive extension of registration periods, and VII.

Dated: March 18, 2013

s/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, March 18, 2013, by electronic and/or ordinary mail.

s/Lisa G. Wagner Case Manager and Deputy Clerk (313) 234-5522

S:\Cleland\JUDGE'S DESK\C1 ORDERS\12-11194.DOES.Grant.In.Part.Mot.Dismiss.wpd
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 2:12-cv-11194-RHC-DRG Doc # 103 Filed 03/31/15 Pg 1 of 73 Pg ID 5875

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOES #1-5 and MARY DOE,

Plaintiffs,

v.

Case No. 12-11194

RICHARD SNYDER and COL. KRISTE ETUE,

Defendants. /

OPINION AND ORDER RESOLVING MOTIONS FOR JUDGMENT

Plaintiffs John Does #1-5 and Mary Doe bring the instant action against Governor

Richard Snyder and Director of the Michigan State Police Colonel Kriste Etue, named in

their official capacities, challenging Michigan’s Sex Offenders Registration Act

(“SORA”), as amended in 2011 and 2013. Both parties have filed Rule 52 motions for

judgment on the stipulated facts and records submitted by the parties. (See Dkt. ## 90-

95). Plaintiffs seek a declaratory judgment and permanent injunction, and ask the court

to grant judgment in their favor on Counts IV, V, VI, VII, and IX of their First Amended

Complaint. (Dkt. # 96, 5669-70.) Defendants move the court to find Plaintiffs’

challenges without merit and grant judgment in their favor. (Dkt. # 97, Pg. ID 5721.)

The parties have willingly waived their right to a full trial in their Rule 52 motions and

have stipulated that the court may enter judgment based on the record submitted by the

parties. For the reasons set forth below, Plaintiffs’ motion will be granted in part and

denied in part and Defendants’ motion will be granted in part and denied in part.

2:12-cv-11194-RHC-DRG Doc # 103 Filed 03/31/15 Pg 2 of 73 Pg ID 5876
I. BACKGROUND A. Statutory History Michigan enacted SORA in 1994. 1994 Mich. Pub. Acts 295. The 1994 Act established a confidential database containing information about sex offenders that was available only to law enforcement. 94 Mich. Pub. Acts 295, § 10. SORA has been amended numerous times. See 1996 Mich. Pub. Acts 494; 1999 Mich. Pub. Acts 85; 2002 Mich. Pub. Acts 542; 2004 Mich. Pub. Acts 238, 239, 240; 2005 Mich. Pub. Acts 121, 127, 132; 2006 Mich. Pub. Acts 46; 2011 Mich. Pub. Acts 17, 18; 2013 Mich. Pub. Acts 149. As of April 1997, SORA requires law enforcement agencies to make certain registration information available for public inspection, 1996 Mich. Pub. Acts 494, § 10(2), and following the 1999 amendments to SORA, registry information became available through the Internet. See 1999 Mich. Pub. Acts 85, §§ 8(2), 10(2), and 10(3). The amendments between 2002 and 2006, inter alia, increased reporting requirements for registrants; introduced a one-time registration fee; removed the registration requirement for certain individuals assigned to youthful trainee status; prohibited registrants from working, residing, or loitering within 1,000 feet of a school; and created a program whereby members of the public could be notified electronically when a sex offender moved into a particular zip code. See generally 2002 Mich. Pub. Acts 542; 2004 Mich. Pub. Acts 238, 239, 240; 2005 Mich. Pub. Acts 121, 127, 132; 2006 Mich. Pub. Acts 46. The 2011 amendments significantly altered SORA to comply with the federal Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16901 et seq. In its current form, SORA categorizes registrants into three tiers which determine the length
2

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of time that individuals must register and the frequency with which they must report. Mich. Comp. Laws §§ 28.722(r)-(w); 28.725(10)-(13). Tier classifications are based solely on a registrant’s offense and do not factor in an individualized determination of risk. Tier I offenders must register and comply with SORA obligations for fifteen years; Tier II offenders must register and comply with SORA obligations for twenty-five years; and Tier III offenders must register and comply with SORA for life. Mich. Comp. Laws §§ 28.725(10)-(13). The most recent amendments became effective while this case was pending and now require registrants to pay a pay a $50 annual registration fee. 2013 Mich. Pub. Acts 149.
B. Plaintiffs All six Plaintiffs are Michigan residents who are Tier III offenders and thus required by law to register as sex offenders and comply with SORA for life. (Dkt. # 90, Pg. ID 3729.) Following are brief descriptions of Plaintiffs and their offenses. In 1990, after losing his job at McDonald’s, Doe #1 attempted to rob his former employer. (Id. at 3737.) During the robbery, Doe #1 forced the McDonald’s manager and her fourteen-year-old son into the restaurant; when the manager did not open up the safe, Doe #1 struck the manager and kicked her son. (Id.) The manager and her son were able to escape. (Id.) Doe #1 was charged with eleven felony counts. He pleaded no contest to kidnapping (for holding the fourteen-year-old child against his will) and pleaded guilty to the other charges, including armed robbery. (Id.) In 1991, Doe #1 was sentenced to twenty-two to forty years in prison. (Id. at 3738.) He was paroled in November 2009 and completed his parole in November 2011. (Id. at 3739.) Although Doe #1’s criminal offense lacked an overtly sexual component, under the 2011
3

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amendments to SORA, he is classified as a Tier III offender and is required to comply with SORA for life because he was convicted of kidnapping a minor. (Id.) He has two adult children and one toddler, and he co-parents his fiancée’s teenage daughter. (Id.)
Doe #2 pleaded guilty under the Holmes Youthful Trainee Act (“HYTA”), Mich. Comp. Laws § 750.520d(1)(a), to criminal sexual conduct III after having a sexual relationship with his fourteen-year-old “girlfriend” in 1996 when he was eighteen years old. (Id. at 3741.) His plea was based on the prosecutor’s promise that his records would be sealed. (Id. at 3743.) Under the HYTA, Doe #2 was assigned the status of “youthful trainee” and sentenced to two years probation. (Id. at 3742.) After completing his probation, his case was dismissed without conviction being entered pursuant to Mich. Comp. Laws § 762.14(1). Designation as a “youthful trainee” is included in the definition of “convicted” under SORA, Mich. Comp. Laws § 28.722(b). Doe #2 is classified as a Tier III offender and must therefore comply with SORA for life. (Id. at 4745.) Doe #2 currently has a teenage daughter. The daughter’s mother has full custody, and Doe #2 has weekend visitation rights. (Id. at 3747.)
In 1998, at the age of nineteen, Doe #3 had a sexual relationship with a fourteen year old. (Id. at 3748.) Doe #3 pleaded guilty to attempted criminal sexual conduct and was sentenced to four years of probation under the HYTA. (Id. at 3750.) During his last year on probation, Doe #3 failed to timely register under SORA. (Id. at 3751.) His HYTA status was revoked, and a conviction was entered. (Id.) Doe #3 has a nine-yearold son, a six-year-old son, and an infant son. (Id.) He was originally required to
4

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register for a period of twenty-five years on a non-public registry, but was reclassified as a Tier III offender in 2011. (Id. at 3750, 3752.)
Doe #4 pleaded guilty to attempted criminal sexual conduct III in 2006 after having a sexual relationship with a female under the age of sixteen, who he met in a nightclub restricted to those aged eighteen years and older. (Id. at 3752-53.) He was twenty three years old at the time. (Id. at 2752.) Doe #4 was sentenced to five years probation, which he completed. (Id. at 3753.) He is currently involved in a romantic relationship with his victim, who is now over eighteen years old. They have a sevenyear-old daughter and an infant child, and Doe #4 has two other children as well. (Id. at 3754.) In 2011, Doe #4 was classified as a Tier III offender, extending his period of registration from twenty-five years to life. (Id.)
Doe #5 was added to this action by a stipulated order entered on August 27, 2013. (Dkt. # 34.) In 1980, he was convicted of criminal sexual conduct III and sentenced to two to fifteen years of imprisonment. (Dkt. # 90, Pg. ID 3757.) At the time of the conduct, Doe #5 was twenty one years old and the victim was seventeen years old. (Id.) The victim testifed at trial that the sexual conduct was nonconsenual, and Doe #5 and his sister testifed that it was consensual. (Id.) Doe #5 served approximately twenty-one months of his sentence. (Id.) He was not required to register as a sex offender until 2011 after he pleaded guilty to larceny pursuant to SORA’s “recapture” provisions, added by the 2011 amendments, which require registration for eligible recidivists who are convicted of any additional felony after July 2011. See Mich. Comp. Laws § 28.724(5). (Dkt. # 90, Pg. ID 375.) Doe #5 did not timely register and
5

2:12-cv-11194-RHC-DRG Doc # 103 Filed 03/31/15 Pg 6 of 73 Pg ID 5880
was therefore cited for a probation violation and jailed for ninety days. (Id. at 3759.) He has children and grandchildren. (Id. at 3761)
Ms. Doe was convicted in Ohio of one count of unlawful sexual conduct with a minor in 2003 for having a sexual relationship with a fifteen-year-old male when she was twenty-nine years old. (Id. at 3761-62.) She was sentenced to three years in prison, but was granted judicial release after serving less than eight months of her sentence. (Id. at 3763-65.) Ms. Doe was assigned to the lowest risk level of Ohio’s sex offender registry, which required address verification once a year for ten years. (Id. at 3763-64.) She moved to Michigan in 2004 after her judicial release. She was initially required to register quarterly for twenty-five years, but was reclassified as a Tier III offender in 2011. (Id. at 3765-66.) Ms. Doe has a teenage daughter, step-children, and three grandchildren under the age of ten, and she is expecting another grandchild. (Id.)
C. The Constitutional Challenges Plaintiffs claim that the retroactive nature of SORA, its extensive reporting requirements and prohibitions, and its broad application violate their constitutional rights. Their First Amended Complaint seeks declaratory and injunctive relief enjoining Defendants from enforcing certain provisions of SORA and barring the retroactive application of the 2011 and 2013 amendments to Plaintiffs. (Dkt. # 46, Pg. ID 903-04, 911.) The complaint alleges nine counts: (1) violation of the Ex Post Facto Clause by the retroactive application of the 2011 amendments (Count I); (2) violation of Plaintiffs’ fundamental rights to travel protected by the Due Process Clause (Count II); (3) violation of Plaintiffs’ fundamental right to engage in common occupations of life protected under the Due Process Clause (Count III); (4) violation of Plaintiffs’ right to
6

2:12-cv-11194-RHC-DRG Doc # 103 Filed 03/31/15 Pg 7 of 73 Pg ID 5881
direct the education and upbringing of their children under the Due Process Clause (Count IV); (5) violation of Plaintiffs’ right to free speech as protected by the First Amendment incorporated through the Fourteenth Amendment (Count V); (6) violation of the Due Process Clause because the Act is retroactive and “harsh or oppressive or [] violates principles of fundamental fairness” (Count VI); (7) violation of the Due Process Clause because certain provisions are vague, impossible to comply with, or wrongly impose strict liability (Count VII); (8) violation of the Headlee Amendment to the Michigan Constitution which prohibits the state legislature from requiring local governments to increase their level of participation in a state program unless the increase is fully funded by the state (Count VIII); and (9) violation of the Ex Post Facto Clause by the retroactive application of the 2013 amendments (Count IX). (Dkt. # 46, Pg. ID 896-902, 910-11.)
Defendants filed a motion to dismiss Plaintiffs’ original complaint. The court granted in part and denied in part the motion, dismissing with prejudice Counts I, II, and III, dismissing with prejudice VI inasmuch as it applies to the retroactive application of SORA to Does ##1 and 2, and dismissing without prejudice Count VIII. The motion was denied with respect to Counts IV, V, and VII. It was denied with respect to Count VI inasmuch as it applies to the retroactive extension the lifetime registration requirement to Does ##3 and 4 and Ms. Doe. (Dkt. # 27, Pg. ID 703-04 (published at Does v. Snyder, 932 F. Supp. 2d 803, 824 (E.D. Mich. 2013)). Count IX was added to the Amended Complaint after the court entered its order disposing of Defendants’ motion to dismiss.
II. STANDARD 7

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Both parties have moved for a summary bench trial on the records submitted by the parties, in the form of a joint statement of facts and accompanying exhibits (Dkt. ## 90-95). “[A] district court may decide a case by summary bench trial upon stipulation of the parties as long as the parties have willingly foregone their right to a full trial.” AcuffRose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 142-43 (2d Cir. 1998); see May v. Evansville-Vanderburgh Sch. Corp., 787 F.2d 1105, 1115-16 (7th Cir. 1986); Nielsen v. W. Elec. Co., 603 F.2d 741, 743 (8th Cir. 1979); Starksy v. Williams, 512 F.2d 109, 11213 (9th Cir. 1975). Here, Plaintiffs and Defendants willingly waived their right to a full trial in their motion papers and have requested that the court enter judgment based on the record before it. (Dkt. ## 96, 97.) When reviewing Rule 52 motions, “the court does not view the evidence in the light most favorable to the nonmoving party, as it would in passing on a Rule 56 motion for summary judgment or a Rule 50(a) motion for judgment as a matter of law; instead, it exercises its role as a factfinder.” United States v. $242,484.00, 389 F.3d 1149, 1172 (11th Cir. 2004).
III. DISCUSSION A. Count VII: Vagueness, Impossibility, and Strict Scrutiny In Count VII, Plaintiffs claim SORA violates the Due Process Clause of the Fourteenth Amendment because provisions of SORA are improperly vague, impossible to comply with, and/or wrongly impose strict liability. In particular, Plaintiffs challenge (1) the prohibition on working within a student safety zone, Mich. Comp. Laws §§ 28.733-734; (2) the prohibition on loitering within a student safety zone, Mich. Comp. Laws §§ 28.733-734; (3) the prohibition on residing within a student safety zone, Mich. Comp. Laws §§ 28.733, 28.735; (4) the requirement to immediately report changes in
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personal data, Mich. Comp. Laws § 28.725; (5) the requirement to report educational information, Mich. Comp. Laws § 28.724a; and (6) the requirement to maintain a driver’s license or state personal identification card with a current address, Mich. Comp. Laws § 28.725a(7). (Dkt. # 46, Pg. ID 900-01.)
1. Void for Vagueness “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The Supreme Court’s vagueness doctrine has two primary goals: (1) “to ensure fair notice to the citizenry” and (2) “to provide standards for enforcement by the police, judges, and juries.” Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1104 (6th Cir. 1995). In light of these goals, courts have developed a two-part test to determine if a statute is unconstitutionally vague. First, the court must determine whether the law gives a person “of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned, 408 U.S. at 108. In reviewing a vagueness challenge, the court considers whether “ordinary people, exercising ordinary common sense, can understand [a statutory prohibition] and avoid conduct which is prohibited, without encouragement of arbitrary and discriminatory enforcement. United States v. Salisbury, 983 F.2d 1369, 1378 (6th Cir. 1993). Second, the court must evaluate whether the statute provides sufficiently “explicit standards for those who apply them” or whether, due to a statute’s vagueness, it “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis.” Grayned, 408 U.S. at 108-09. “The standards of enforcement must be precise enough to avoid ‘involving so many factors of varying effect that neither the person to
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decide in advance nor the jury after the fact can safely and certainly judge the result.’” Columbia Natural Res., 58 F.3d at 1105 (quoting Cline v. Frink Dairy Co., 274 U.S. 445, 465 (1927)).
“The degree of vagueness that the Constitution tolerates . . . depends in part on the nature of the enactment.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982). “The [Supreme] Court has expressed greater tolerance of enactments with civil rather than criminal penalties . . . , recognized that a scienter requirement may mitigate a law’s vagueness . . . , [and stated that] perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights.” Id. at 498-99. The challenged provisions of SORA impose criminal sanction for non-compliance, Mich. Comp. Laws §§ 28.729, 734(2), 735(2), make Plaintiffs strictly liable for failure to comply with certain requirements and prohibitions, Mich. Comp. Laws §§ 28.725a, 729(2), 734735, and implicate Plaintiffs’ First Amendment right to free speech and their fundamental right to participate in the education and upbringing of their children, see infra Sections III.B and III.C. Accordingly, the court’s standard for vagueness will be more exacting.
On the other hand, the rule of lenity reduces the risk of unfair notice and unclear enforcement standards. “[A]s a sort of ‘junior version of the vagueness doctrine,’ the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.” United States v. Lanier, 520 U.S. 259, 266 (1997). Where possibly ambiguous provisions of SORA are made clear when construed in light of the rule of
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lenity, the vagueness doctrine would not void those provisions. Therefore, the court applies the two-part test for vagueness with due consideration to SORA’s enhanced need for definiteness and SORA’s reduced risk of vagueness.
It is unclear from Plaintiffs’ complaint whether their vagueness claim was intended as a facial or as applied challenge. However, “it is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” United States v. Krumrei, 258 F.3d 535, 537 (6th Cir. 2002) (quoting United States v. Powell, 423 U.S. 87, 92 (1975)); see also Chapman v. United States, 500 U.S. 453, 467 (1991) (“First Amendment freedoms are not infringed by [the statute at issue], so the vagueness claim must be evaluated as the statute is applied to the facts of this case.”); United States v. Kernell, 667 F.3d 746, 750 (6th Cir. 2012) (“For challenges to the statute that do not implicate First Amendment concerns, the defendant bears the burden of establishing that the statute is vague as applied to his particular case, not merely that the statute could be construed as vague in some hypothetical situation.” (internal quotation marks and citation omitted)). But see City of Chicago v. Morales, 527 U.S. 41, 55 (1999) (plurality) (finding that a facial vagueness challenge was appropriate against “a criminal law that contains no mens rea requirement and infringes on constitutionally protected rights”) (citation omitted); Belle Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553, 557 (6th Cir. 1999) (“[E]ven in cases not involving First Amendment rights, we have recognized that courts may engage in a facial analysis where the enactment imposes criminal sanctions.”). Plaintiffs’ void for vagueness challenges only invoke the First Amendment with regard to the Internet use reporting requirements. (See Dkt. # 46, Pg.
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ID 900-01; Dkt. # 96, Pg. ID 5678-90; Dkt. # 99, Pg. ID 5816-23). With regard to all of the other vagueness challenges, “[Plaintiffs] bear[] the burden of establishing that the statute is vague as applied to this particular case, not merely that the statute could be construed as vague in some hypothetical situation.” Krumrei, 258 F.3d at 537 (citing United States v. Avant, 907 F.2d 623, 625 (6th Cir. 1990)). Nonetheless:
When contesting the constitutionality of acriminal statute, it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to chal lenge [the] statute that he claims deters the ex ercise of hi s constitutional rights. When the plainitff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible t hreat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (internal quotation marks and citations omitted). Thus, to the extent that Plaintiffs have curtailed their conduct, because it is unclear whether such conduct violates SORA, the court finds a constitutional vagueness challenge proper.
i. Geographic Exclusion Zones Plaintiffs first challenge SORA’s geographic exclusion zones as void for vagueness. SORA makes it a crime for a registrant to work, “loiter,” or reside “within a “student safety zone.” Mich. Comp. Laws §§ 28.734(1)(a)-(b), 28.735(1). SORA defines “school safety zone” as “the area that lies 1,000 feet or less from school property.” Mich. Comp. Laws § 28.733(f). SORA defines “school property” to mean: [A] building, facility, structure, or real property owned, leased, or otherwise controlled by a school, other than a build ing, facility, structure, or real
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property that is no longer in use on a permanent or continuous basis, to which either of the following applies: (I) [ i]t is used to impart education instruction[, or] (ii) [i]t is for use bystudents not more than19 years of age for sports or other recreational activities. Mich. Comp. Laws § 28.733(e). Plaintiffs contend that the term “school safety zone” is unconstitutionally vague because SORA provides insufficient guidance for how the 1,000 feet zones should be measured. (Dkt. # 96, Pg. ID 5681-86.) Plaintiffs note that the zones are not physically marked, and registrants are not provided with maps demarking the boundaries. Without demarcation or maps, the typical registrants are unable to identify the zones because they lack the software and data to map the zones, and Michigan has not provided a list of school properties or parcel data to registrants or law enforcement. (Dkt. # 96, Pg. ID 5681-82.) Additionally, Plaintiffs argue that the term is vague because there is no guidance as to whether the 1,000 feet distance should be measured “point to point” or “property-line to property line” nor whether it should be measured “as the crow flies or as people actually travel.” (Dkt. # 96, Pg. ID 5681-82.) “Because plaintiffs cannot know where the zones are, they must ‘over-police’ themselves, erring on the side of caution.” (Id. at 5684.) For example, Doe #4's partner testified that Doe #4 does not live with her and their two children because their house is down the street from a school, and she was not sure if the school was within 1,000 feet of her home. (Dkt. # 90, Pg. ID 3863.) Likewise, Doe #1, Doe #3, and Ms. Doe testified that they had difficulties searching for new homes because they were unable to accurately calculate the 1,000 feet distances. (Id. at 3831-42.) Ms. Doe testified that
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she looked at properties farther than 1,000 feet from schools “so that I know that I’m okay.” (Id. at 3842.)
While a prescribed distance may appear concrete on its face, without adequate guidance about how to measure the distance, such provisions are suspectible to vagueness concerns. For example, in Cunney v. Bd. of Trustees, 660 F.3d 612 (2d Cir. 2011), the Second Circuit considered whether a zoning ordinance that prohibited the building of structures “over two stories tall or four and one-half feet above the easterly side of River Road” was void for vagueness. Id. at 621. The court held that, while the ordinance “affords a reasonable person adequate notice of what it generally prohibits (e.g., three-story buildings will be in violation), it is remarkably unclear with respect to how the four and a half foot limitation is defined.” Id. The ordinance did not specify “from what adjacent elevation point on River Road the height of a building must be measured . . . . Consequently, this shortcoming not only fails to give specific notice of how a permit applicant should design his site plan so that the proposed building complies with that restriction, but it also fails to provide an objective standard that Village itself can apply . . . .” Id. Similarly, the geographic exclusion zone provisions in SORA generally inform Plaintiffs that they may not reside, work, or loiter within 1,000 feet of a school zone, but, like the ordinance at issue in Cunney, SORA does not clarify how to measure the 1,000 feet.
It is unclear whether SORA’s exclusion zones should be measured from only the real property on which educational instruction, sports, or other recreational activities take place—excluding the parking lot, administrative buildings, and other real property used for other purposes—or whether the zone should be measured from the school
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property line even when some of the real property is not used for one of the stated purposes. An attorney with the Prosecuting Attorneys’ Association of Michigan testified that prosecutors share “a pretty strong consensus that [the 1,000 feet distance] is measured property line to property line.” (Dkt. # 90, Pg. ID 3830.) Even assuming that this reflects SORA’s intended meaning, it nonetheless would be difficult for law enforcement and registrants to parse through school-owned real property to determine which is used for instruction, sports, or recreation, and which is not. However, the prosecutors’ alleged consensus does not reflect a literal reading of SORA. A literal reading of SORA would exclude from the definition of “school property” parking lots, school administrative buildings, and other parts of a school’s real property where no instruction, sports, or other recreational activcities occur. This literal, but arguably less practical, reading of SORA is bolstered by the rule of lenity because it reads the statute’s ambiguity in the registrants’ favor.
Assuming the 1,000 feet zones were measured from the property line, registrants would still be unable to reasonably determine the boundaries of the exclusion zones, resulting in the sort of “over-policing” described by Doe #4's partner. Michigan has not provided registrants with a map of exclusion zones or a list of all school properties. Defendants suggest that registrants can rely on Google maps (www.google.com/maps) and phone books to determine if their potential address is within 1,000 feet of an exclusion zone. (Dkt. # 97, Pg. ID 5767.) However, such tools do not eliminate many of the sources of vagueness. First, neither Google maps nor phone books provide parcel data or clearly mark property lines. Second, while Google maps can provide helpful estimates as to distances between two properties, it would not provide a registrant with
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the necessary detail to determine whether a property that is close to 1,000 feet away from a school property line falls within an exclusion zone.
Furthermore, Defendants acknowledge that neither the Michigan State Police nor current registrants have the necessary data to precisely determine the geographic exclusion zones. Michigan is developing software called Offender Watch that reportedly will provide law enforcement with a standardized guideline for determining exclusion zones, but Offender Watch cannot currently conduct parcel to parcel measurements because the State Police do not have the necessary data. (Dkt. # 90, Pg. ID 3831 (“The [Michigan State Police’s Sex Offender Registration] Unit has tried but been unable to obtain parcel data . . . .”).) Moreover, Offender Watch will not include all properties as defined by SORA, but only “active schools according to the Michigan Department of Education.” (Dkt. # 90, Pg. ID 3830-31.) Nothing in Defendants’ Rule 52 motion or the Joint Statement of Facts suggests that law enforcement has the means to calculate the exclusion zones if a court should determine that the 1,000 feet distance should be measured from only the parts of a school’s real property used for instruction, sports, or other recreational activities.
SORA does not provide sufficiently definite guidelines for registrants and law enforcement to determine from where to measure the 1,000 feet distance used to determine the exclusion zones, and neither the registrants nor law enforcement have the necessary data to determine the zones even if there were a consensus about how they should be measured. Accordingly, due to SORA’s vagueness, registrants are forced to choose between limiting where they reside, work, and loiter to a greater extent than is required by law or risk violating SORA.
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ii. Loitering

Next, Plaintiffs contend that SORA’s prohibition against “loiter[ing]” within 1,000

feet of school property is unconstitutionally vague because the meaning of “loiter” is

“totally unclear.” (Dkt. # 96, Pg. ID 5686.) SORA defines “loiter” to mean “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.” Mich. Comp. Laws

§

28.733(b). Plaintiffs argue that it is unclear “whether they are permitted to attend

parent-teacher conferences, go to a school movie night, or take their children to a

school play-ground on the weekend.” (Dkt. # 96, Pg. ID 5687.) Defendants counter that

the term is clear, and describe Plaintiffs’ argument as “making some kind of ‘as-applied’

challenge without the statute actually having been applied in the manner they argue.”

(Dkt. # 97, Pg. ID 5770.) But Plaintiffs’ challenges are more than hypothetical. As

discussed above, they need not risk violating SORA in order to challenge the law;

Plaintiffs may challenge the definition of “loiter” to the extent that it has curtailed their

conduct. Cf. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).

SORA’s prohibition on loitering has curtailed Plaintiffs’ conduct. For example, in

order to avoid risking a SORA violation, Doe #3 does not “attend school activities like

movie nights, math nights, bingo nights, open house/meet the teacher, talent shows,

musicals, concerts or plays.” (Dkt. # 90, Pg. ID 3861.) Likewise, Doe #3’s wife

suggests that Doe #3 avoids “waiting for [her] children to come out of school and talk to

his niece or nephew or observe his own children walking down from school” for fear that

this conduct would violate the prohibition on loitering. (Dkt. # 90, Pg. ID 3853.) Thus,

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the court construes the vagueness challenge against the definition of “loiter” as an as applied challenge.
The definition of “loiter” contains two parts: (1) “remain[ing] for a period of time” and (2) “under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors.” Mich. Comp. Laws § 28.733(b). As this is an as applied challenge, the court will review the vagueness of this term as it relates to the activities from which Plaintiffs claim to have refrained. First, “ordinary people, exercising ordinary common sense can understand” the meaning of the phrase “remain for a period of time.” States v. Salisbury, 983 F.2d 1369, 1378 (6th Cir. 1993). Webster’s Third New International Dictionary 1919, 2394 (3d ed. 1981) defines “remain” to mean “to stay in the same place or with the same person or group,” and it defines “time” to mean “a period during which something (as an action, process, or condition) exists or continues.” Whether or not the phrase “period of time” embodies a degree of ambiguity by itself, the phrase “remain for a period of time” refers to staying in a school zone for any duration. Driving one’s child to school and then immediately leaving the school zone does not involve “remain[ing]” in the school zone for any period of time; meanwhile, waiting at the school to pick up one’s child after school does involve “remain[ing]” in the school zone for a period of time. Ordinary people using common sense can deduce that, to “attend parent-teacher conferences, go to a school movie night, or take their children to a school play-ground on the weekend” (Dkt. # 96, Pg. ID 5686-87), a registrant would need to “remain for a period of time” in a school zone. Likewise, Doe #3’s abstention from waiting for his wife’s children after school and observing his children walking from school is not the result of unconstitutional
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vagueness in the phrase “remain for a period of time” because such activities fall within the meaning of the phrase.
The second component of the definition of “loiter” raises a more difficult question. In City of Chicago v. Morales, 527 U.S. 41 (1999), the Supreme Court considered whether an ordinance prohibiting criminal street gang members from loitering was unconstitutionally void for vagueness. A plurality of the court found that the definition of the term “loiter” was ambiguous. The ordinance at issue in Morales defined “loiter” as “to remain in any one place with no apparent purpose.” Id. at 56. The plurality reasoned, “It is difficult to imagine how any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an ‘apparent purpose.’” Id. at 57.
Similarly, just as it would be difficult to determine if a Chicagoan were standing in a place with no apparent purpose, in many circumstances, it would be difficult—perhaps not as difficult, but difficult nonetheless—to determine if a Michigander were standing in an exclusionary zone “apparently” for the specific, primary purpose of observing or contacting minors. Conduct such as a registrant starting a conversation with a minor, videotaping a minor, or standing on a playground by himself watching minors, would likely fall within the definition of “loitering” with little room for a registrant to argue ambiguity. However, it remains ambiguous whether a registrant may attend a school movie night where he intends only to watch the screen, or a parent-teacher conference where students may be present. The Morales plurality explained that “the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law [because] ‘[n]o one may be required at peril of life, liberty or property to
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speculate as to the meaning of penal statutes.’” Id. (quoting Lanzetta v. New Jersey, 306 U.S. 451 (1939)). SORA’s present definition of “loiter” is sufficiently vague as to prevent ordinary people using common sense from being able to determine whether Plaintiffs are, in fact, prohibited from engaging in the conduct from which Plaintiffs have refrained.
iii. Reporting Requirements Plaintiffs also argue that SORA’s reporting requirements are unconstitutionally vague. In particular, Plaintiffs challenge the requirement that a registrant must “report in person and notify the registering authority . . . immediately after . . . the individual purchases or begins to regularly operate any vehicle,” Mich. Comp. Laws § 28.725(1)(g), and the requirements that a registrant must report (1) “[a]ll telephone numbers registered to the individual or routinely used by the individual,” (2) “[a]ll electronic mail addresses and instant message addresses assigned to the individual or routinely used by the individual,” and (3) “[t]he license plate number, registration number, and description of any motor vehicle, aircraft, or vessel owned or regularly operated by the individual and the location at which the motor vehicle, aircraft, or vessel is habitually stored or kept.” Mich. Comp. Laws § 727(1)(h)-(j). Plaintiffs assert that the terms “routinely used,” “regularly operated,” and “habitually stored and kept” are vague and undefined. (Dkt. # 96, Pg. ID 5687-88.) The requirements to report telephone numbers and e-mail and instant message addresses implicate First Amendment free speech rights and are, therefore, subject to facial vagueness challenges. The requirement to report vehicles does not implicate First Amendment rights, but Plaintiffs adequately articulate how alleged vagueness in
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the term “regularly operate” has caused certain Plaintiffs to choose between potentially over-reporting information or risk violating SORA. For example, Doe #1’s employer owns a fleet of vehicles, and Doe #1 testified that he is unsure whether he must report all of the vehicles (and inform his employer that all of the vehicles have been reported) because there is a chance he may drive any particular vehicle at some point. (Dkt. # 90, Pg. ID 3933.) Likewise, Doe #2 drives his girlfriend’s car “once a quarter to go register and maybe two or three other times in that period.” (Id.) Doe #2 does not know if this constitutes “regular use” for the purposes of SORA. The court interprets the record as setting forth a vagueness challenge to the vehicle reporting requirement as applied to Does ##1 and 2. For the same reasons, Plaintiffs may also challenge the telephone reporting provision as applied to Doe #4. Doe #4 is unsure whether he must register his mother’s telephone number, which he uses “on occasion.” (Dkt. # 90, Pg. ID 3936.) See Babbitt, 442 U.S. at 298 (internal quotation marks and citations omitted) (“When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.”). For both the as applied challenges and facial challenges, the vagueness in these provisions renders them constitutionally infirm for the reasons discussed below.1
SORA does not define “regularly” or “routinely” as used in §§ 28.725(1)(g) and 727(1)(h)-(j). “Unless they are otherwise defined, the words in a statute ‘will be
1Plaintiffs have not alleged an as applied challenge to the phrase “habitually stored and kept,” and the court will not consider a facial challenge to this phrase.
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interpreted as taking their ordinary, contemporary, common meaning.’” Deutsche Bank
Nat’l Trust Co. v. Tucker, 621 F.3d 460, 463 (6th Cir. 2010) (quoting United States v.
Plavcak, 411 F.3d 655, 660 (6th Cir. 2005)). Webster’s Third New International
Dictionary 1913 (3d ed. 1981) defines “regularly” as “in a regular, orderly, lawful, or
methodical way,” and it defines “regular,” in relevant part, as “steady or uniform in
course, practice, or occurrence” and “returning, recurring, or received at stated, fixed, or
uniform intervals.” In the court’s March 18, 2014 Opinion and Order Granting in Part
and Denying in Part Defendants’ Amended Motion to Dismiss, the court denied
Defendants’ motion to dismiss as to Count VII, finding that a similar dictionary definition
of the term “regularly” does not “appear to provide an individual of ordinary intelligence
a reasonable opportunity to know when he or she must report their use of a vehicle.
Nor does the word ‘regularly,’ without some additional elaboration of its meaning,
constitute a precise enough standard so as to avoid arbitrary enforcement by the State.”
(Dkt. # 27, Pg. ID 699.) Regarding this second point, the court explained in its previous
order:
This second point is illustrated by thecomplaint’s averment that John Doe IV was told by police officials that borrowing a car three times is the threshold for regular operation. (See Compl. ¶ 31.) There is no explanation in either the complaint or the attached ex hibits, and Def endants offer none in their briefing, of how police could have arrievd at the conclusion that the borrowing of a vehicle three times equals regular operation. If the individual police officers arrived at this conclusion on their own, the reporting provision certainly raises red flags. On t he other hand, and only hypothetically, if police based this three-event standard on some formal guidance published by the State and made available to the public, the vagueness objection to § 28.725(1)(g) may be obviated. A more robust factual record is essential in this regard. Howev er, the court cannot dismiss Count VII simply because Defendants contend that the challenged pr ovisions have been in effect for several years and Plaintiffs have allegedly satisfied the provisions.
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(Dkt. # 27, Pg. ID 699-700.) In their Rule 52 motion, Defendants reassert the same argument made in their
motion to dismiss that “none of the Plaintiffs expressed any doubt or uncertainty over what ‘regularly’ means.” (Dkt. # 97, Pg. ID 5765.) Defendants also note that the phrase “regularly operate” was introduced into SORA at the request of the ACLU (Id. at 5766); however, this is inapposite to whether the is phrase is unconstitutionally vague. The Joint Statement of Facts indicates that Plaintiffs and law enforcement are unsure as to the meaning of the term “regularly” (Dkt. # 90, Pg. ID 3930-37), and nothing in Defendants’ motion alleviates the court’s concern, expressed in its previous order, that the term “regularly’ is vague under both parts of the vagueness test.
The term “routinely” implicates the same vagueness concerns as the term “regularly.” Webster’s Third New International Dictionary 1981 (3d ed. 1981) defines “routine” as, inter alia, “a standard practice,” “the habitual method of performance of established procedures,” and “of a commonplace or repetitious character.” Both of these terms indicate to registrants and police officers that some degree of normal repetition is needed to be deemed to have regularly or routinely engaged in an activity. But these terms are not sufficiently concrete (1) “to ensure fair notice to the citizenry” or (2) “to provide standards for enforcement by the police, judges, and juries.” Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1104 (6th Cir. 1995).
The court’s analysis of these terms is guided by Belle Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553 (6th Cir. 1999). In Belle Maer Harbor, the Sixth Circuit struck down an ordinance regulating “bubbling devices,” which “extract relatively warmer water from the bottom of a waterway and bring that water to the surface, creating an
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area of open water which otherwise would be covered by ice.” Id. at 555 n.2. The ordinance provided in relevant part:
D. The amount of open water creat ed by a bubbling system shall be controlled as follows: 1. In canals one hundred ten (110') feet or less in width, a person choosing to bubble shall operate, maintain andperiodically inspect the bubbling syset m apparatus so as to maintain an open water radius surrounding the bubbled object not to exceed five (5') feet, or as determined by the inspecting officer to be a reasonable radius. Id. at 555 n.3. The plaintiffs in Belle Maer Harbor challenged the ordinance as void for vagueness, and the Sixth Circuit focused on whether the term “reasonable” “bound[ed] the inspection officer’s enforcement decisions sufficiently to prevent ad hoc, discriminatory enforcement of the open water restriction. Id. at 558. The court noted that “a failure to define a term within a statute or ordinance does not render the statute unconstitutionally vague, where the common meaning of the word provides both adequate notice of the conduct prohibited and of the standards for enforcement.” Id. The court concluded that “a commonly accepted meaning [did not] exist[] for the term ‘reasonable’ which would provide an inspection officer with guidance in interpreting the Ordinance and in executing his or her enforcement duties with any uniformity.” Id. The court found that the Black’s Law Dictionary definition of reasonable “demonstrates that a standard grounded on reasonableness in this context is susceptible to a myriad of interpretations conferring on the inspectors ‘a virtually unrestrained power to arrest and charge persons with a violation.’” Id. (quoting Kolender, 461 U.S. at 360). Thus, the court held that the ordinance was unconstitutionally vague because it entrusted the
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enforcement of the ordinance “to the moment-to-moment judgment of the policeman on his beat” and because “the court [could not] conclude that a person of ordinary intelligence could determine from this standard the proscribed conduct.” Id. at 559.
Similar to the ordinance’s use of the word “reasonable” in Belle Maer Harbor, the commonly accepted meaning of the terms “regularly” and “routinely” do not provide sufficient guidance to law enforcement or registrants to survive a due process challenge both generally and as applied to Plaintiffs. The frequency and consistency with which Doe #1 must drive his employers’ vehicles in order to trigger the registration requirement is unclear. Likewise, it is ambiguous whether Doe #2’s use of his girlfriend’s car a few times a quarter constitutes regular use, particularly in light of the rule of lenity, and a reasonable person and well-intentioned law enforcement officer would struggle to determine whether Doe #4’s occasional use of his mother’s phone was “routine.” The ambiguity in the reporting requirements is further highlighted by officers’ and prosecutors’ responses to an informal telephonic survey questions conducted by volunteers for Plaintiffs, law enforcement officers’ answers to deposition questions, and law enforcement officers’ guidance to Plaintiffs.
Volunteers for Plaintiffs asked local law enforcement agencies and prosecutors’ offices how often a registrant could use a vehicle before triggering SORA’s reporting requirements. “[S]ome respondents did not know the answer, and others provided answers ranging from once or twice, to six or seven times, to ‘whatever is reasonable.’” (Dkt. # 90, Pg. ID 3931.) When asked during a deposition whether a registrant who used a vehicle once during a three-month period had to report the vehicle, the law
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enforcement officer testified, “That would be probably a judgment call by the prosecutor or the law enforcement agency.” (Dkt. # 60-8, Pg. ID 1853.) He answered in the affirmative when asked if “each law enforcement agency might come to a different conclusion about what regular use means.” (Id.) Furthermore, law enforcement told Doe #4 that “if he borrows a car more than three times he must immediately report in person,” but such use does not clearly trigger SORA’s reporting requirements. (Dkt. # 90, Pg. ID 3935.) Similarly, a local police department informed Ms. Doe that she had to register a vehicle “if she was driving it or if it was parked in her driveway.” (Id. at 3936.)
The disparate views of the meaning of the term “regularly use” exemplify the lack of a standardized guidelines for the enforcement of SORA’s reporting provisions. The Belle Maer Harbor court emphasized, “although we do not require impossible clarity in standards governing conduct, the court must apply a relative strict standard of scrutiny here where criminal sanctions apply.” Belle Maer Harbor, 170 F.3d at 559 (citing Kolender, 461 U.S. at 361). Here, SORA subjects registrants to criminal sanctions if they do not comply with the registration requirements, but SORA’s vagueness leaves law enforcement without adequate guidance to enforce the law and leaves registrants of ordinary intelligence unable to determine when the reporting requirements are triggered.
iv. Additional Terms and Phrases Challenged by Plaintiffs In Plaintiffs’ Response to Interrogatory 11, Plaintiffs challenge several additional terms and phrases as unconstituionally vague, including, inter alia, the terms “employee,” “immediately,” “residence,” “student,” and many others. (See Dkt. # 64-1, Pg. ID 2137-42.) In addition to the other terms discussed in this Section, Plaintiffs’ Rule
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52 Motion specifically identifies as vague the terms “immediate,” “employer,” “temporarily reside,” and “designation used in Internet communications,” and it incorporates the other terms listed in the Response to Interrogatory 11 by reference. (Dkt. # 96, Pg. ID 5687-88.)
Plaintiffs may challenge SORA on vagueness grounds only as applied to Plaintiffs unless the challenges implicate the First Amendment. As stated above, the parties challenging the statutes “bear[] the burden of establishing that the statute is vague as applied to [their] particular case, not merely that the statute could be construed as vague in some hypothetical situation.” Kernell, 667 F.3d at 750. Plaintiffs have not carried this burden for the majority of terms and phrases listed in their Response; rather, their Motion asserts the sort of facial challenge that is reserved for laws implicating First Amendment rights. Two terms or phrases identified by Plaintiffs as vague implicate Plaintiffs’ First Amendment rights and are therefore subject to facial challenges: the term “immediately” and the phrase “any other designations used in internet communications or postings.” See infra Section III.C. Therefore, the court may review Plaintiffs’ facial vagueness challenge of this term and phrase.
Section 28.725(1)(f) requires registrants to “report in person and notify the registering authority . . . immediately after . . . [t]he individual establishes any electronic mail or instant message address, or any other designations used in internet communications or postings.” SORA defines “Immediately” to mean “within 3 business days.” Mich. Comp. Laws § 28.722(g). This definition provides registrants with adequate notice and law enforcement with adequate guidance as to the immediacy with
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which Plaintiffs must report new Internet designations. Black’s Law Dictionary (10th ed. 2014) defines “business day” as “[a] day that most institutions are open for business, usu[ally] a day on which banks and major stock exchanges are open, excluding Saturdays, Sundays, and certain major holidays.” Courts regularly use the term “business days” as defined in Black’s. E.g., Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502 (1990) (distinguishing “business days” from “calendar days”). Plaintiffs attempt to insert ambiguity into the term by suggesting that “it is unclear what ‘business days’ means in the context of reporting to law enforcement authorities that provide service seven days a week.” (Dkt. # 64-1, Pg. ID 2137.) But as evident in Black’s definition, the term refers to days that most institutions are open for business and most institutions are not open on weekends. SORA’s use of the term “immediately” is in no way vague or ambiguous.
Likewise, the phrase “designation used in Internet communications or postings,” when given the narrowing construction discussed below, is sufficiently clear to give fair notice to registrants as to what information must be reported and adequate guidance to law enforcement and the courts to provide standard enforcement of the law. See Columbia Natural Res., 58 F.3d at 1104. It is an intrinsic aspect of language that every word contains some degree of ambiguity. Cf. Johnson v. United States, 559 U.S. 133, 139 (2010) (Scalia, J.) (“[C]ontext determines meaning.”). “You’re bad!” can be an insult or a particularly nice compliment; “this is Steven Spielberg’s last film” can mean that it is the most recent one he directed or it could mean that it is the final film that he will ever direct; and “Mark Twain” can refer to Samuel Langhorne Clemens, the author of The Adventures of Tom Sawyer (1876), a crater on Mercury, or the nautical term for two
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fathoms (twelve feet). In Green v. Block Laundry Mach. Co., 490 U.S. 504 (1989), the
Supreme Court explored the ambiguity in the word “defendant” as used in a former version of Federal Rule of Evidence 609(a)(1):2
The word [“defendant”] might be interpreted to encompass all witnesses, civil and criminal, parties or not. It might be read to connote any party offering a witness, in which event Rule 609(a)(1)'sbalance would apply to civil, as well as criminal, cases. Finally, “defendant” may refer only to the defendant in a criminal case.
Id. at 511 (citations omitted). The Court rejected “an interpretation [of the Rule] that
would deny a civil plaintiff the same right to impeach an adversary's testimony that it
grants to a civil defendant,” id. at 510, and held that Rule 609(a) “requires a judge to
permit impeachment of a civil witness with evidence of prior felony convictions
regardless of ensuant unfair prejudice to the witness or the party offering the testimony.”
Id. at 527. In a separate opinion, Justice Scalia—a strong advocate for giving statutes
their plain meaning, see INS v. Cardoza-Fonseca, 480 U.S. 421, 452-55 (1987) (Scalia,
J, concurring)—joined the majority in advocating interpreting the word “defendant”
against its literal meaning to avoid “produc[ing] an absurd, and perhaps unconstitutional,
result.” Green, 490 U.S. at 527 (Scalia, J., concurring); id. at 528-29 (“The word
2 In 1989, Rule 609(a) provided in relevant part:
General Rule. For the purpos e of a ttacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the wit ness or est ablished by public record during cross-examination but only if the cr ime (1) was punis hable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determinesthat the probativevalue of admitting this evidence outweighs its prejudicialeffect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
Green, 490 U.S. at 509. 29

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‘defendant’ in Rule 609(a)(1) cannot rationally (or perhaps even constitutionally) mean to provide the benefit of prejudice-weighing to civil defendants and not civil plaintiffs. Since petitioner has not produced, and we have not ourselves discovered, even a snippet of support for this absurd result, we may confidently assume that the word was not used (as it normally would be) to refer to all defendants and only all defendants.”).
As with the seemingly unambiguous words “bad,” “last,” and “defendant,” the phrase “any other designations used in internet communications or postings” includes some degree of ambiguity. Webster’s Third New International Dictionary 612 (3d ed. 1981) defines “designation,” inter alia, to mean “distinguishing name.” Law enforcement and registrants of ordinary intelligence would reasonably understand this phrase to include Internet aliases used to convey and exchange information. See Webster’s Third New International Dictionary 460 (3d ed. 1981) (defining “communicate” to mean “to make known,” “inform a person of,” and “convey the knowledge or information of”); Webster’s Third New International Dictionary 1771 (3d ed. 1981) (defining “post” to mean “to affix . . . to a post, wall or other usual place for public notice); Post, MerriamWebster’s Online Dictionary http://www.merriam-webster.com/dictionary/post (last visited Mar. 30, 2015) (defining “post” as “to publish (as a message) in an online forum (as an electronic bulletin board)”).
While the phrase uncontroversially includes social media aliases and other aliases used for the primary purpose of exchanging information with other Internet users, there are many Internet aliases that individuals use that involve some degree of Internet communication but do not clearly fall within SORA. Plaintiffs ask, “Must an
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individual report when setting up a new on-line bank account, Amazon account, Mlive account, gaming account, etc.?” (Dkt. # 64-1, Pg. ID 2139.) Through an alias created for a massively multiplayer online role-playing game (“MMORPG”), a registrant would likely engage in substantial communication with other individuals, including minors. Through an Ebay account, a registrant might post items for sale, communicate bids, and engage in private communications with sellers or buyers about the status of a transaction. Individuals use online banking primarily to access their financial information, pay bills, deposit funds, and engage in other economic activity, but these accounts may also be used to communicate with bankers to facilitate such activities. In the broadest sense, virtually all online accounts are Internet designations used for some sort of communication.
In order to alleviate ambiguity and in light of the rule of lenity, the court interprets SORA’s catch-all Internet designation phrase to apply to Internet designations that are primarily used in Internet communications or postings. This construction is consistent with a plain reading of the statute. “[U]nder the established interpretive canons of noscitur a sociis and ejusdem generis, ‘[w]here general words follow specific words in statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.’” Wash. State Dept. of Soc. and Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384 (2003) (quoting Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001)); see Yates v. United States, 135 S. Ct. 1074, 1086-87 (2015) (plurality) (applying the canon of ejusdem generis in holding that fish do not fall within the Sarbanes-Oxley Act of 2002's, 18 U.S.C. § 1519, prohibition against knowingly destroying “tangible object[s]”
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because that term is limited to objects “used to record or preserve information”). “Any other designation used in internet communications or postings” is a general phrase which follows the more specific terms “electronic mail” and “instant message address” in § 28.725(1)(f). E-mail and instant message addresses are used primarily for the purpose of communicating with other individuals online. Therefore, applying the canon of ejusdem generis, the court construes “other designations used in internet communications or postings” to refer only to designations used primarily for the purposes of Internet communications or postings.
This construction excludes designations used primarily to engage in e-commerce and online banking, or to read content like online newspaper accounts even though registrants may post comments at the end of online newspaper articles or “chat” with Amazon representatives. Meanwhile, a MMORPG alias is created for the primary purpose of interacting with other online gamers and engaging in a substantial amount of communications. Such aliases are “similar in nature” to e-mail and instant message addresses and fall within the Internet designation provision.
This narrowing construction also has the virtue of being consistent with how law enforcement is currently trained to enforce § 28.725(1)(f). The manager of Michigan’s sex offender registry testified that Michigan State Police’s Sex Offender Registration Unit trains law enforcement to record e-mail addresses and social media screen names, but not online banking information. (Dkt. # 60-6, Pg. ID 1800.) The manager also testified that online gaming screen names fall within SORA. (Id. at 1801.)
In sum, using this narrowing construction, § 28.725(1)(f) is sufficiently clear to provide fair notice to registrants and adequate guidance to law enforcement.
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2. Strict Liability Plaintiffs further contend that SORA violates the Due Process Clause because it imposes strict liability for many reporting and exclusion zone violations. (Dkt. # 46, Pg. ID 900; Dkt. # 96, Pg. ID 5690-92.) Defendants do not address Plaintiffs’ strict liability arguments in their responses to Plaintiffs’ Rule 52 Motion. Similar to the void for vagueness doctrine, strict liability in the context of criminal statutes raises concerns of fair notice. “[E]ven when a statute is specific about which acts are criminal, [the] due process analysis is not complete. When . . . predicate acts which result in criminal violations are commonly and ordinarily not criminal, [courts] must ask the fair notice question once again.” United States v. Apollo Energies, Inc., 611 F.3d 679, 687 (10th Cir. 2010). “It is . . . the general rule of law, and the dictate of natural justice, that to constitute guilt there must be not only a wrongful act, but a criminal intention.” Morissette v. United States, 342 U.S. 246, 274 (1952). In Liparota v. United States, 471 U.S. 419 (1985) the Supreme Court held that, to be convicted for violating a statute governing food stamp fraud, the government must provide that the defendant knew that the acquisition or possession of food stamps was in an unauthorized manner. Id. at 433. The Court explained that, for most criminal statutes imposing strict liability, “Congress has rendered criminal a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community’s health or safety;” meanwhile, the acquisition or possession of food stamps is not so obviously against the public interest that a reasonable person should be expected to know it is regulated. Id. Plaintiffs insist that taking one’s children to a park near a school or failing to report a new e-mail account
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are similarly not inherently blameworthy activities, and, therefore, the court should read a knowledge requirement into SORA violations. The court agrees.
SORA imposes myriad restrictions and reporting requirements that affect many aspects of registrants’ lives. Ambiguity 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. Moreover, law enforcement officers’ disparate answers to survey and deposition questions about what SORA’s reporting requirements and prohibitions highlight SORA’s imperfect ability to provide fair notice to all persons who it covers. The frequency with which SORA is amended, as well as today’s highly mobile population, make a knowledge requirement even more important to ensure due process of law.
The court’s decision is guided by Lambert v. California, 355 U.S. 225 (1957), in which the Supreme Court considered whether a Los Angeles ordinance making it “unlawful for ‘any convicted person’ to be or remain in Los Angeles for a period of more than five days without registering” and “requir[ing] any [convicted] person having a place of abode outside the city to register if he comes into the city on five occasions or more during a 30-day period.” Id. at 226. The particular question before the Court was “whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.” Id. at 227. The Court added a knowledge requirement to the ordinance and held that “[w]here a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Id. at 229-30.
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Recognizing a knowledge requirement in SORA does not defang the legislation. Instead, it shifts responsibility to courts, law enforcement, and probation officers to make sure persons convicted of sex offenses are informed of their legal obligations. Such a sharing of responsibility is grounded in the text of SORA. SORA directs the department of corrections to “mail a notice to each individual registered under [SORA] who is not in a state correctional facility explaining the individual’s duties under this act as amended.” Mich. Comp. Laws § 28.725a(1). The Act also directs the department of corrections to “provide written notice to [an] individual [upon the individual’s release from a state correctional facility] explaining his or her duties under [SORA] and the procedure for registration, notification, and verification and payment of registration fee.” Mich. Comp. Laws § 28.725a. SORA was not enacted to serve as a trap for individuals who have committed sex offenses in the past (and who already have served their sentences). Rather, the goal is public safety, and public safety would only be enhanced by the government ensuring that registrants are aware of their obligations.
3. Impossibility Plaintiffs also allege that “SORA . . . contains provisions with which compliance is impossible,” rendering the Act in violation of the Due Process Clause. (Dkt. # 46, Pg. ID 900.) Their Rule 52 motion identifies two such provisions. First, Plaintiffs contend that the requirement for registrants to report in person makes compliance with SORA impossible because it may be infeasible for persons subject to SORA who are ill or injured or facing an emergency to timely report in person. (Dkt. # 96, Pg. ID 5692.) Were Plaintiffs’ reasoning applied to all legislation, no law that imposes an affirmative duty on an individual to perform a task would be consistent with
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due process of law because it would always be the case that some individuals could be too infirm to perform the affirmative duty. If the court interprets Plaintiffs’ argument as applying exclusively to laws involving strict liability, adopting such an argument would still call into question the constitutionality of any strict liability statute or regulation imposing a duty to act.
Plaintiffs’ impossibility argument raises a serious constitutional issue, but it is unaccompanied by any allegations that persons have been penalized for failing to report in person when required under SORA, due to illness, injury, or emergency. Plaintiffs cite to an incident in 2001 when Doe #3 failed to comply with the quarterly in-person reporting requirement because “Doe #3 came back from a vacation near the end of the 15-day registration period,” and “[t]he police station was closed from Friday, Saturday, and Sunday for a long weekend.” (Dkt. # 90, Pg. ID 3750-51.) As a consequence of Doe #3’s subsequent late reporting, he was found in violation of his probation, and his HYTA status was revoked. (Id. at 3751.) This is not an incident in which a registrant’s compliance with SORA was impossible. Defendants note that “it is not clear why Doe #3 chose to return from vacation at that time, or if he made any effort to check the police station’s availability before going on vacation, or if he attempted to go to any other police agency to report once he learned that his local police station was closed.” (Id.) Requiring an individual to slightly alter his vacation plans is a far cry from a due process violation.
“It is the duty of federal courts to avoid the unnecessary decision of the constitutional questions.” Tower Realty v. City of E. Detroit, 196 F.2d 710, 724 (6th Cir.1952); see United States v. Elkins, 300 F.3d 638, 647 (6th Cir. 2002) (“Courts
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should avoid unnecessary constitutional questions.”); Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.” (citation omitted)). This principle of constitutional avoidance counsels against resolving the question of whether SORA may penalize persons who fail to report in person due to illness, injury or emergency where, as here, there is no indication that the law has ever been enforced in such a manner. Furthermore, as will be discussed infra, the “in person” reporting requirement places an unnecessarily burdensome obstacle that limits protected First Amendment speech and, therefore, renders that provision unconstitutional. Accordingly, the legislature will have cause to revisit SORA’s requirement that registrants report in person. Under the circumstances, it is prudent for the court to abstain from ruling on this issue.
Second, Plaintiffs argue that SORA violates the Due Process Clause because Doe #4 “is automatically and unpreventably in violation” of SORA because “he is homeless [and] cannot update his driver’s license to match his registration address (which is ‘homeless’).” (Dkt. # 96, Pg. ID 5692.) Mich. Comp. Laws § 28.725a(7) provides:
An individual required to be registered under this act shall maintain either a valid operator’s or chauffeur's lic ense issued under the Michigan vehic le code, 1949 PA 300, MCL 257.1 to 257.923, or an official s tate personal identification card issued under 1972 PA 222, MCL 28.291 to 28.300, with the individual’s current address. The license or card may be used as proof of domicile or residence under this se ction. In addition, the officer or authorized employee may require the individual to produce another document bearing his or her name and address, in cluding, but not limit ed t o, voter registration or a utility or other bill. The department may specify other satisfactory proof of domicile or residence.
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A violation of § 28.725a(7) subjects an individual to “imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.” Mich. Comp. Laws § 28.729(2). Plaintiffs do not allege that Doe #4 has been charged with violating SORA due to his failure to update his driver’s license or identification card. However, the court acknowledges that Doe #4 is left in the unenviable position of fearing that he may, at any moment, be arrested and sentenced to imprisonment for violating SORA. Here, there is a credible threat of prosecution, and Doe #4 need not wait until he faces criminal prosecution to seek relief. See Babbitt, 442 U.S. at 298.
Absent from the record is information about if and how homeless persons may obtain state identification cards. The Supreme Court of Michigan has held that “homelessness is not a bar to compliance with SORA because homelessness does not preclude an offender from entering a police station and reporting to a law enforcement agency regarding the offender's residence or domicile.” People v. Dowdy, 802 N.W.2d 239, 242 (Mich. 2011). While the majority in Dowdy noted that SORA directs registrants to maintain a driver’s license or state identification card, it did not address whether it is feasible for homeless registrants to obtain such identification. Id. at 245. To the contrary, the majority implicitly acknowledges that homeless registrants may have difficulty obtaining a driver’s license or state identification card by emphasizing that “those are not the exclusive means by which an offender may prove residence or domicile to law enforcement” and that, “if a sex offender is unable to provide any of the statutorily specified documents . . . , the Michigan State Police is empowered to formulate alternative methods . . . to verify the offender’s residence or domicile.” Id.
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The Dowdy dissent insisted that § 28.725a(7)’s (then § 28.725a(8)) requirement for registrants to maintain a driver’s license or state personal identification card with their current address was unlawful because compliance is impossible for homeless registrants. Justice Kelly, writing for herself and two other justices, explained:
[T]o obtain a driver’s lic ense or stat e identification card, the Secretary of State requires an applicant to provide at least two documents “with [his or her] name and Michigan residence addr ess. Hence, by the Secretary of State's own requirements, an individual cannot obtain a state identification card absent a valid residential address, which defendant did not have. Nor does the majority, the Michigan State Police, or the prosecutor indicate how a homeless sex offender like defendant could obtain an identification card without a permanent address, much less change an address to reflect transient accommodations. Id. at 259 (Kelly, J., dissenting) (footnote omitted). In order for the court to determine whether SORA’s requirement for registrants to maintain a driver’s license or state personal identification card is constitutional, as applied to Doe #4 and other homeless registrants, the court needs additional briefing on how and if homeless registrants can obtain such identification. The court will reserve ruling on the constitutionality of this provision until the parties have submitted additional briefing. B. Count IV: The Fundamental Right to Participate in the Education and
Upbringing of Children In Count IV, Plaintiffs claim that SORA’s geographic exclusion zones violate the Due Process Clause of the Fourth Amendment because they (1) substantially interfere with Plaintiffs’ ability to participate in the upbringing and education of their children, (2) do not provide for individualized consideration before restricting this right, and (3) are not narrowly tailored to serve a compelling state interest. (Dkt. # 46, Pg. ID 897-98.) In
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particular, Plaintiffs first contend that SORA’s prohibition on loitering within 1,000 feet of a school safety zone does allow registrants to contact or observe their own children within the zones and thus prevent registrants from “observ[ing] or contact[ing their] children in half the city.” (Dkt. # 96, Pg. ID 5694.) Second, Plaintiffs argue that, even if the loitering ban does not apply to one’s own children, the ban nonetheless unconstitutionally restricts parental rights because registrants cannot take their children to locations within the school safety zones where other children are likely to be. (Dkt. # 96, Pg. ID 5694-95.)
Defendants argue that the loitering ban “does not implicate a fundamental right, [and therefore] it need only rationally advance some legitimate government purpose.” (Dkt. # 97, Pg. ID 5760.) They contend that this standard is met because the loitering ban advances a state interest in protecting children. (Id.) Further, Defendants assert that, [e]ven were the student safety zones established by SORA to implicate a fundamental right, this claim still fails because the [loitering ban] is narrowly tailored to advance the State’s compelling interest in protecting children.” (Id. at 5760-61.)
“The substantive component of the Due Process Clause protects ‘fundamental rights’ that are so ‘implicit in the concept of ordered liberty’ that ‘neither liberty nor justice would exist if they were sacrificed.’” Doe v. Mich. Dep’t of State Police, 490 F.3d 491 (6th Cir. 2007) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). The right to “direct the education and upbringing of one’s children” is one such fundamental right. Id. (quoting Washington v. Glucksberg, 521 U.S. 702, 720 (1997). “The government cannot infringe on [a fundamental liberty interest] ‘unless the infringement is narrowly tailored to serve a compelling state interest.’” Johnson v. City of Cincinnati, 310 F.3d
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484, 502 (6th Cir. 2002) (quoting Glucksberg, 521 U.S. at 721). But where the law does not infringe on a fundamental right, the court “analyze[s] its constitutionality under the rational basis test,” Walker v. Bain, 257 F.3d 660, 667-68 (6th Cir. 2001), upholding the law “so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996).
“[T]he interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). The liberty interest includes a parent’s right to “the companionship, care, custody and management of his or her children.” Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). However, “the Supreme Court has yet to articulate the parameters of this right,” and the Sixth Circuit has recognized that the right “is neither absolute nor unqualified” and “is limited by an equal[ly] compelling governmental interest in the protection of children, particularly where the children need to be protected from their own parents.” Kottmyer v. Maas, 436 F.3d 684, 690 (6th Cir. 2006).
In the court’s previous opinion granting in part and denying in part Defendants’ motion to dismiss, the court found that the loitering ban “appears to prevent Plaintiffs from engaging in a plethora of activities closely related to the upbringing of their children” and that Defendants failed to “demonstrate that the loitering prohibition is actually narrowly tailored to the State’s interest and fails to explain why a less restrictive prohibition . . . would not effectively achieve the State’s interest.” (Dkt. # 27, Pg. ID 69395.) The court informed the parties that “[f]actual development is warranted” in order for the court to determine whether the loitering ban leaves Plaintiffs with sufficient
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involvement in their children’s lives to warrant rational basis review and, if not, to determine when the ban is narrowly tailored to achieve a compelling governmental interest. (Id. at 695.)
Because of the geographical exclusion zones’ unconstitutional vagueness, the court is ill-equipped to evaluate whether the loitering ban does in fact infringe on parents’ rights to participate in the upbringing and education of their children. Defendant contends that the loitering ban does not infringe on this right because “the [geographic exclusion zone] provisions do[] not outright ban an offender’s presence on school property.” (Dkt. # 97, Pg. ID 5756-57.) They note that registrants may drop off and pick up their children, go to a public library, and attend a parent-teacher conference. However, as previously discussed, ambiguity in the exclusion zones and in the term “loiter” leave registrants of ordinary intelligence unable to determine what behavior is prohibited by SORA. Due to SORA’s vagueness, it is unclear whether a registrant may visit a public library or attend a parent-teacher conference where minors are present without risking arrest from law enforcement. Furthermore, because it is unclear how the geographic exclusion zones are measured, the court is unable to determine the extent to which SORA infringes on a registrant’s ability to find a place to live with his children and the extent to which SORA prevents a registrant from accompanying his children to parks, playgrounds, movie theaters, restaurants, and other establishments and places in the state. Defendants do not themselves provide any viable means for determining how much of Michigan falls within the exclusion zones, and SORA is too vague for the court, registrants, and law enforcement to make this determination.
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Defendants rely on Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) in which the Eighth Circuit found that a statute prohibiting sex offenders from living within 2,000 feet of a school did “not infringe upon a constitutional liberty interest relating to matters of marriage and family in a fashion that require[d] heightened scrutiny.” Id. at 711. The Eighth Circuit reached this conclusion on the ground that “the statute does not directly regulate the family relationship or prevent any family member from residing with a sex offender in a residence that is consistent with the statute.” Id. But a statute need not directly regulate family relations in order to infringe on a person’s right to associate with his family. In Johnson v. City of Cincinnati, 310 F.3d 484 (6th Cir. 2002), the Sixth Circuit struck down as unconstitutional an ordinance that excluded individuals arrested, taken into custody, or convicted of an enumerated drug offense from “drug-exclusion zones” which were defined as “areas where the number or arrests for . . . drug-abuse related crimes for the twelve (12) month period preceding the original designation is significantly higher than that for other similarly situated/sized areas of the city.” Id. at 487-88. The Sixth Circuit held that the ordinance “plainly infringed on [a grandmother’s] right to participate in the rearing of her grandchildren” because it “effectively banished” her from the neighborhood in which her grandchildren resided “and precluded . . . her regular role in caring for her grandchildren.” Id. at 505. Furthermore, at least one court has held that a similar ordinance, which “prohibits registered sex offenders from residing or loitering within 500 feet of any school, park, playground, recreation area, or day care facility or within 25 feet of a school bus stop,” infringes on fundamental parental rights. Elwell v. Township of Lower, 2006 WL 3797974, at *1 (N.J. Super. Ct. 2006). The Elwell court concluded:
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The geographical restrictions on wher e the plaintiff (or any other sex offenders for that matter) may reside or “loiter,” substantially intrude upon significant family matters involving private and personal choices about how to raise and care for children, and decision-making about where to reside. The Ordinance restricts Elwell, a low risk offender, from accompanying his children to the school bus stop, going intoa school or to a public park with his children, for fear of being charged with “loitering” because he is a convicted sex offender. The rights affected are significant, and are unnecessarily burdened by the Ordinance. Id. at *15. It is well-settled that Michigan has a compelling interest in protecting minors from violence and sexual abuse. (Dkt. # 90, Pg. ID 3767.) If the Michigan legislature amends SORA to provide effective clarity to the loitering ban, perhaps the court could find that the ban does not infringe on Plaintiffs’ associational rights and/or that the ban is narrowly tailored to achieve a compelling state interest. However, SORA’s vagueness leaves the court unable to determine to what extent SORA infringes on Plaintiffs’ right to participate in the upbringing and education of their children, or whether SORA is narrowly tailored to achieve that interest.
C. Count V: Violation of the First Amendment In Count V, Plaintiffs allege that SORA’s “requirements to report information about on-line accounts and activity is invalid under the First Amendment both on its face and as applied because it is not narrowly tailored to serve a compelling state interest and because it prohibits a substantial amount of protected speech.” (Dkt. # 46, Pg. ID 898.) Plaintiffs specifically challenge the constitutionality of two of SORA’s provisions, Mich. Comp. Laws §§ 28.727(1)(I) and 28.726(1)(f). Section 28.727(1)(I) provides that a registrant must report “[a]ll electronic mail addresses and instant message addresses assigned to the individual or routinely used by the individual and all login names or other
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identifiers used by the individual when using any electronic mail address or instant messaging system.” Section 28.725(1)(f) requires registrants to “report in person and notify the registering authority . . . immediately after . . . [t]he individual establishes any electronic mail or instant message address, or any other designations used in internet communications or postings.”
Defendants argue that the registration and reporting requirements do not prevent Plaintiffs’ access to the Internet or regulate the content of their online speech. They maintain that the requirements “no more regulate[] speech than does the collection of other required information such as the offenders’ names, addresses, vehicle identification, or employer data.” (Dkt. # 97, Pg. ID 5746.)
The court denied Defendants’ motion to dismiss as it related to Count V, explaining that, “[w]ithout additional briefing and further information on the operation of the provisions, the court is unable to determine whether the provisions implicate registrants’ First Amendment rights.” (Dkt. # 27, Pg. ID 702.) The court expressed that the contention that SORA chills registrants’ speech “deserves more considered reflection” especially given that “at least one of the Plaintiffs refus[ed] to use the internet” in light of the reporting requirements. (Id. at 701 quoting Compl. ¶ 204 (“ [John Doe IV] does not use the Internet because he would be required . . . to register all email and Internet identifiers, and would need to report constantly in order to use different websites with different user-names.”).) Specifically, the court stated that “it is not at all clear to the court how the provisions interact with registrants’ ability to use the internet as a medium to engage in protected speech. Particularly of interest is what the State does with the information provided.” Id. Furthermore, the court noted that “additional
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information on the actual operation of the provisions is necessary to determine whether they are narrowly tailored.” (Id. at 701-02.)
The First Amendment, as applied to the states through the Fourteenth Amendment, protects individuals from laws abridging the freedom of their speech. U.S. Const. amend. I. The Supreme Court has extended the First Amendment’s free speech protections to the Internet. Reno v. ACLU, 521 U.S. 844, 870 (1997) (“[O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to [the Internet].”). Any law burdening the exercise of free speech “must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.” Broadrick v . Oklahoma, 413 U.S. 601, 611-12 (1973). “[T]he government may impose reasonable restrictions on the time, place, or manner of protected speech,” provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (internal quotation marks omitted). The Supreme Court clarified this standard, explaining:
A regulation of t he time, place, or manner of protected speech must be narrowly tailored t o s erve the gover nment's legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied “so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” Id. at 798-99 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). SORA’s Internet reporting provisions are content neutral in that they restrict
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speech without reference to the [speech’s] content.” Doe v. Prosecutor, Marion County, Indiana, 705 F.3d 694, 698 (2013); see Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 643 (1994) (“As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based. By contrast, laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content neutral.” (citations omitted)). Accordingly, applying the standard set forth in Ward, the court must determine whether the restrictions are (1) narrowly tailored, (2) to serve a significant government interest, while (3) leaving ample alternative channels for communicating information.
Both parties concede, and it is beyond cavil, that the state has a compelling interest in protecting minors from violence and sexual abuse. (Dkt. # 90, Pg. ID 3767.) The parties, however, vigorously dispute whether the Internet reporting provisions are narrowly tailored to achieve this interest.
Plaintiffs contend that SORA’s Internet provisions are not narrowly tailored because “they do nothing beyond what is accomplished by existing laws to protect minors from sexual crime” and note that “those [minor solicitation] laws did a much better job at narrowly targeting the behavior the state wanted to curtail” than SORA does.3 (Dkt. # 96, Pg. ID 5698.) See Mich. Comp. Laws § 750.145d (prohibiting the
3In arguing that SORA’s Internet provisions are not narrowly tailored, Plaintiffs cite to Doe v. Prosecutor, Marion County, Indiana, 705 F.3d 694 (7th Cir. 2013). In that case, the Seventh Circuit struck down an Indiana statute that prohibited most registered sex offenders from using social networking websites, instant messaging services, and chat programs. Id. at 695. The Seventh Circuit concluded that, although the statute was content neutral, they were not narrowly tailored to serve the state’s interest inasmuch as “[i]t broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors.” Id. However, the statute at
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solicitation of minors over the Internet). However, SORA does go beyond the existing laws and provides further protection of minors from sexual crimes in two ways. First, whereas § 750.145d prohibits the online solicitation of minors, SORA’s Internet provisions create a database of online identities of persons convicted of sex offenses which makes easier the investigation of crimes in which a minor (or adult) has been contacted through an online alias. Second, as the Department of Justice’s Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART”) aptly suggests, “knowledge that their Internet identifiers are known to the authorities may deter registered sex offenders from engaging in criminal behavior on the Internet.” (Dkt. # 90, Pg. ID 3877.) Plaintiffs note that law enforcement has yet to use the Sex Offender Registration database to search for registrants’ Internet information to solve a crime. (Dkt. # 96, Pg. ID 5698.) But this in no way affects whether SORA is narrowly tailored to achieve the state’s significant and compelling interest in protecting minors.
Next, Plaintiffs attack SORA’s Internet provisions on the ground that they unconstitutionally restrict Plaintiffs’ right to anonymous speech. (Dkt. # 96, Pg. ID 569899.) The Supreme Court has recognized that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” McIntyre v. Ohio Elections. Comm’n, 514 U.S. 334, 342 (1995). The First Amendment’s protection of anonymous speech extends to the Internet as well. See, e.g., Doe v.
issue in Marion County is distinguishable from SORA. Whereas the Indiana statute prohibited certain registrants from using social networking websites, SORA does not bar any speech on the Internet, but rather imposes reporting requirements.
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Harris, 772 F.3d 563, 574 (9th Cir. 2014); Doe v. Shurtleff, 628 F.3d 1217, 1222 (10th Cir. 2010); Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001) (“The right to speak anonymously extends to speech via the Internet.”). “[A]nonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible,” McIntyre, 514 U.S. at 341-42, and the Ninth Circuit has suggested that anonymity may be particularly important to sex offenders engaged in protected speech because it “provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.” Harris, 772 F.3d at 581 (quoting McIntyre, 514 U.S. at 342).
Two recent circuit court opinions provide helpful guidance in addressing Plaintiffs’ argument. See Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010) and Doe v. Harris, 772 F.3d 563 (9th Cir. 2014). The court ultimately concludes that requiring Plaintiffs to disclose their Internet designations to law enforcement does not unconstitutionally infringe on their right to anonymous speech. However, the requirement that Plaintiffs’ report new designations in person as well as the Internet provisions’ aforementioned vagueness render these provisions unconstitutionally overbroad.
In Shurtleff, the Tenth Circuit considered whether a Utah law requiring registered sex offenders to report their “internet identifiers” violated the First Amendment. 628 F.3d 1217. In holding that the law did not violate registrants’ First Amendment rights, the Tenth Circuit narrowly read the statute in order to dispel the registrant’s concerns that the public would have access to his reported information and that law enforcement would be unhindered from constant surveillance of his activities. To that end, the court
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“read th[e] statute as permitting sharing only among law-enforcement agencies, not the public at large, and only for [] recited law-enforcement purposes.” Id. at 1225. Likewise, in explaining its holding “that the statute includes sufficient restrictions so as not to unnecessarily chill [the registrant’s] speech,” the court read the statute “as only allowing state actors to look beyond the anonymity surrounding a username in the course of an investigation after a new crime has been committed.” Id. The Tenth Circuit also noted that, “[a]lthough there is a possibility that a government agent would have access to Doe's identity at the time he was speaking—as, for example, if an undercover [officer] sought him out in a chat room in the course of investigating a sex crime—we are not persuaded that this possibility imposes a constitutionally improper burden on speech.” Id.
Meanwhile, in Doe v. Harris, 772 F.3d 563 (9th Cir. 2014), the Ninth Circuit enjoined provisions of the Californians Against Sexual Exploitation Act, which required sex offenders to report “[a] list of any and all Internet identifiers established or used by the person” and “[a] list of any and all Internet service providers used by the person,” as well as requiring registrants to send written notice to law enforcement within 24 hours of any additions or changes to this information. Id at 567-68 (quoting Cal. Penal Code §§ 290.014(b), 290.015(a)(4), (5)). Applying intermediate scrutiny, the Ninth Circuit concluded that the Act “unnecessarily chills protected speech in at least three ways: the Act does not make clear what sex offenders are required to report, there are insufficient safeguards preventing the public release of the information sex offenders do report, and the 24-hour reporting requirement is onerous and overbroad.” Id. at 578.
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In particular, the Ninth Circuit found that “ambiguities in the statute may lead registered sex offenders either to overreport their activity or underuse the Internet to avoid the difficult questions in understanding what, precisely, they must report.” Id. at 579. “This uncertainty undermines the likelihood that the [Act] has been carefully tailored to the [State’s] goal of protecting minors.” Id. (quoting Reno, 521 U.S. at 871.). Second, the Ninth Circuit held that “the Act . . . chills anonymous speech because it too freely allows law enforcement to disclose sex offenders’ Internet identifying information to the public” because the Act provides that “any designated law enforcement entity may provide information to the public about a person required to register as a sex offender . . . when necessary to ensure the public safety based upon information available to the entity concerning that specific person.” Id. at 580 (quoting Cal. Penal Code § 290.45(1)(1)). The court noted that this provision “contains no standard for judging what is ‘necessary to ensure the public safety,’” and that, “[w]ithout such standard, the Act impermissibly ‘places unbridled discretion in the hands of a government official or agency.’” Id. (quoting City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988)). Thus, “registered sex offenders are unnecessarily deterred from engaging in anonymous online speech.” Id. at 581. Third, the Ninth Circuit found the twenty-four-hour update requirement to be a substantial and undeniable burden on First Amendment activities, explaining that “anytime registrants want to communicate with a new identifier, they must assess whether the message they intend to communicate is worth the hassle of filling out a form, purchasing stamps, and locating a post office or mailbox.” Id. at 582. The court further explained that “[t]he mail-in requirement is not only psychologically chilling, but physically inconvenient, since
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whenever a registered sex offender obtains a new ISP or Internet identifier, he must go
somewhere else within 24 hours to mail that information to the State.” Id.
While neither of these cases are controlling, they are instructive. Both courts
were concerned with who would have access to the reported information. In this regard,
SORA is more akin to the Utah legislation than the enjoined California statutes. Both
parties concede that “registrants’ internet identifiers are not made available to the
general public.” (Dkt. # 90, Pg. ID 3875.) SORA explicitly provides:
The following information shall not be made available on the public internet website . . . (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 us ing any electronic mail address or instant messaging system.
Mich. Comp. Laws § 28.728(3).
Thus, SORA neither prohibits registrants from engaging in any particular speech
on the Internet, nor does it unmask registrants’ anonymity to the public. SORA does
unveil registrants’ anonymity to law enforcement; however, this does not, by itself,
infringe upon Plaintiffs’ First Amendment rights. In Laird v. Tatum, 408 U.S. 1 (1972)
the Supreme Court noted:
In recent years this Court has found ina number of cases that constitutional violations may arise from the deterren t, or ‘chilling,’ effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights. In none of these cases, however, did the chilling effect arise merely from the individual's knowledge that a governmental agency was engaged in certain activities or from t he individual's concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and addition[a]l action detrimental to that individual. Rather, in each of these cases, the challenged ex ercise of governmental power was regulatory, proscriptive, or compulsory in nature, and t he complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging.
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Id. at 11. The Sixth Circuit has construed Laird to stand for the proposition that, “to allege a
sufficient injury under the First Amendment, a plaintiff must establish that he or she is regulated, constrained, or compelled directly by the government's actions, instead of by his or her own subjective chill.” ACLU v. Nat’l Sec. Agency, 493 F.3d 644 (6th Cir. 2007). Here, given that registrants’ anonymity remains intact with regard to the public, any chilling effect caused by the limited removal of Plaintiffs’ anonymity would be caused by the sort of subjective fear of future government action discounted in Laird.
However, there are two aspects of SORA’s Internet reporting provisions that are particularly onerous on registrants and render the Internet reporting requirements unconstitutionally burdensome. First, just as ambiguity in the California statute contributed to its chilling effect on speech, so too does the ambiguity in SORA’s Internet reporting provisions discussed above. Ambiguity as to the meaning of “routinely used” would likely result in both overreporting and under use of permissible speech activities. It is uncertain whether a registrant would need to register her husband’s email account were she to occasionally respond to emails from his address. For example, if the registrant were to send holiday emails from her husband’s account in December, pay a bill using his email account in March, and then share photos with a family member from his email account in May, she would be left to determine whether such use was “routine.” Reasonable persons could either avoid using another person’s email account or report the account out of a sense of caution even though this usage may not appear to fall within the dictionary definition of routine. See supra Section III.A.1.iii. As with the California law, “[t]his uncertainty undermines the likelihood that the [Act] has been
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carefully tailored to the [State's] goal of protecting minors.” Harris, 772 F.3d at 579 (quoting Reno, 521 U.S. at 871).
More problematic is § 28.725(1)’s requirement that registrants report “in person” immediately (i.e., within three business days) whenever they establish “any electronic mail or instant message address, or any other designation used in internet communications or postings.” Mich. Comp. Laws § 28.725(1)(f). The requirement to report in person is surely more burdensome to registrants than the California law’s requirement to report new Internet identifiers by mail within twenty-four hours. In concluding that the “24-hour reporting requirement . . . undoubtedly chills First Amendment Activity,” the Ninth Circuit explained:
[A]nytime registrants want to communicate with a new identifier, they must assess whether the messagethey intend to communicate is worth the hassle of filling out a form, purchasing stamps, and locating a post office or mailbox. The mail-in requirement is not only psychologically chilling, but physically inconvenient, since whenever a registered sex offender obtains a new I SP or Internet identifier, he must go somewhere else within 24 hours to mail that information to the State. Harris at 581-82. This court need not—and does not—agree that putting a stamp on an envelope and walking it to one’s front door or roadside mailbox constitutes a notable “hassle,” let alone one that “undoubtedly chills” a person’s ability to freely speak. It remains, however, that SORA’s “in person” reporting requirement imposes a substantially greater, and apparently unnecessary, burden on protected First Amendment speech. Accordingly, while SORA’s Internet reporting provisions serve the significant governmental interest of protecting minors and investigating sexual crimes, the
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ambiguity in the reporting requirements and the requirement to report “in person” render the provisions not narrowly tailored and, therefore, unconstitutional.
D. Count VI: Retroactive Application of Lifetime Registration Requirement Plaintiffs claim that the 2011 SORA amendments’ imposition of retroactive
lifetime registration violates the Due Process Clause of the Fourteenth Amendment. (Dkt. # 46, Pg. ID 898-99; see Dkt. # 96, Pg. ID 5699-700 (“The due process question before this Court is not whether myriad amendments to SORA over the last 20 years can be applied retroactively, but rather whether one particular change—the imposition of retroactive lifetime registration—violates due process.”).) In their complaint, Plaintiffs specifically identify three manners in which the lifetime registration amendment contravenes the Due Process Clause: (1) the application of SORA to Doe #1 who was not required to register as a sex offender upon his conviction for kidnapping in 1990; (2) the application of SORA to Doe #2 who pleaded guilty in 1997 under the HYTA with the expectation that his case would be dismissed and his records sealed; and (3) the 2011 amendment’s retroactive extension of Doe #3’s, Doe #4’s, and Ms. Doe’s registration periods from twenty-five years to life “without any individualized showing that such an extension is warranted.” (Dkt. # 46, Pg. ID 898-99.)
The court held in its previous opinion that, “as a matter of law . . . , retroactively applying SORA to [Does ##1 and 2] is justified by a legitimate legislative purpose” and dismissed Count VI as it relates to the retroactive application of SORA to those Plaintiffs. (Dkt. # 27, Pg. ID 696.) However, the court found that, “at this early stage of the litigation, the court is unable to determine whether retroactively extending the registration period of Plaintiffs from twenty-five years to life is justified by a legitimate
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legislative purpose” and, accordingly, denied “Defendants’ motion as it applies to the extension of Plaintiffs’ registration periods.” (Id. at 697.) The court now considers this issue and concludes that the retroactive application of SORA’s lifetime registration requirement is constitutional.
1. Level of Scrutiny Generally, “[r]etroactivity is not favored in the law.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). As the Supreme Court explained in Landsgraf v. USI Film Prods., 511 U.S. 244 (1994), “[t]he Due Process Clause . . . protects the interests in fair notice and repose that may be compromised by retroactive legislation; a justification sufficient to validate a statute's prospective application under the Clause ‘may not suffice’ to warrant its retroactive application.” Id. at 266. Yet, “[i]n general, due process is satisfied ‘simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose.’” Franklin Cnty. Convention Facilities Auth. v. Am. Premier Underwriters, Inc., 240 F.3d 534, 550 (6th Cir. 2001) (quoting Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 730 (1984)). Whereas Franklin County involves an act that “adjust[s] the burdens and benefits of economic life,” id., Plaintiffs argue that the court should apply strict scrutiny rather than rational basis review because SORA burdens fundamental rights—namely Plaintiffs’ fundamental right to parenting and free speech rights. (Dkt. # 96, Pg. ID 5701.) It is well settled that “[g]overnment actions that burden the exercise of . . . fundamental rights or liberty interests are subject to strict scrutiny, and will be upheld only when they are narrowly tailored to a compelling governmental interest.” Seal v.
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Morgan, 229 F.3d 567, 574 (6th Cir. 2007). Defendants cite to no controlling precedent in which a court applied a heightened level of scrutiny for a law’s prospective application but then applied rational basis review to a law’s retrospective application.4 Instead, Defendants rely solely on the doctrine of the law of the case to argue that the court is obligated to apply rational basis review in determining whether the retroactive application of SORA’s lifetime registration violates due process. (Dkt. # 100, Pg. ID 5846 (citing Christianson v. Colts Indus. Operating Corp., 486 U.S. 800, 815-16 (1988) (“[T]he doctrine [of the law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” (citation omitted))).)
The court has not previously decided whether a heightened level of scrutiny or rational basis review applies to the determination of whether the 2011 Amendments’ retroactive extension of Doe #3’s, Doe #4’s, and Ms. Doe’s registration periods from twenty-five years to life violates the Due Process Clause. In denying Defendants’ motion to dismiss as to this claim, the court found that, “at this early stage of litigation, the court is unable to determine whether retroactively extending the registration period of Plaintiffs from twenty-five years to life is justified by a legitimate legislative purposes.” (Dkt. # 27, Pg. ID 697.) The court did not need to consider whether a heightened level of scrutiny applied because it found that the motion to dismiss standard was not met
4The District of Nebraska rejected a due process challenge to the retroactive application of Nebraska’s sex offender registration laws holding that retroactive application of the laws “is itself justified by a rational legislative purpose,” being public safety. Doe v. Nebraska, 734 F. Supp. 2d 882, 932 (D. Neb. 2010). But that court did not consider whether a heightened level of scrutiny was warranted for this determination.
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even applying rational basis review and because the parties did not litigate the proper standard of review. While it is true that the court granted the motion as to the retroactive application of SORA to Does ##1 and 2 on the ground that such application “is justified by a legitimate legislative purpose,” (Dkt. # 27, Pg. ID 696), this ruling is separate from the court’s analysis of the retroactive application to the other Plaintiffs, as evidenced by the court’s disparate dispositions of the claim as applied to Does ##1 and 2 and the other Plaintiffs. Moreover, in recognizing the doctrine of the law of the case, the Supreme Court made clear that, despite this doctrine, “[a] court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance.” Christianson, 486 U.S. at 817. Even if the doctrine applied here, in light of the fact that the standard of review was not litigated during the motion to dismiss phase, the court would find it appropriate to consider in the first instance whether a higher level of scrutiny was warranted.
As discussed above, SORA’s Internet reporting requirements implicate Plaintiffs’ First Amendment free speech right rights and, due to SORA’s vagueness, the court is unable to determine whether the prohibition against loitering and residing in the geographical exclusion zones infringe on a Plaintiffs’ fundamental right to participate in the upbringing and education of their children. For the reasons discussed in Sections III.B and III.C, the court will enjoin the geographic exclusion zone provisions and the majority of the Internet reporting provisions. The court, however, will not enjoin Mich. Comp. Laws § 28.727(1)(f) inasmuch as it requires registrants to report “[a]ll electronic mail addresses and instant message addresses assigned to the individual . . . and all login names or other identifiers used by the individual when using any electronic mail
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address or instant messaging system.” The retroactive application of the lifetime registration requirement implicates the First Amendment only to the extent that it incorporates this reporting requirement—thus retroactively extending the length of time that certain individuals must report their e-mail addresses, instant message addresses, and related information. The court will apply intermediate scrutiny in considering the lifetime registration requirement’s incorporation of this reporting requirement. In all other respects, the retroactive application of the lifetime registration requirement does not implicate Plaintiffs’ First Amendment rights or right to participate in the upbringing and education of their children.
Plaintiffs also contend that the retroactive application of SORA’s lifetime registration should be subject to higher scrutiny because it alters the terms of plea agreements. (Dkt. # 96, Pg. ID 5701-02 (citing Lynch v. United States, 292 U.S. 571, 579 (1934)).) Under this theory, plea agreements are government contracts, and breaches of governmental contracts implicate the Fifth Amendment’s Takings Clause. See Lynch, 292 U.S. at 579 (“Valid contracts are property, whether the obligor be a private individual, a municipality, a state, or the United States. Rights against the United States arising out of a contract with it are protected by the Fifth Amendment.”).
“Plea agreements are contractual in nature.” United States v. Robinson, 924 F.2d 612, 613 (6th Cir. 1991); see Puckett v. United States, 556 U.S. 129, 137 (2009) (“Although the analogy may not hold in all respects, plea bargains are essentially contracts.”). “Plea agreements involve a quid pro quo between a criminal defendant and the government. In exchange for some perceived benefit, defendants waive several of their constitutional rights (including the right to a trial) and grant the
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government numerous tangible benefits, such as promptly imposed punishment without the expenditure of prosecutorial resources.” INS v. St. Cyr, 533 U.S. 289, 321 (2001) (internal quotation marks and citations omitted). “When a defendant agrees to a plea bargain, the Government takes on certain obligations. If those obligations are not met, the defendant is entitled to seek a remedy.” Puckett, 556 U.S. at 137.
Plaintiffs argue that retroactively applying the lifetime registration requirement is unconstitutional because it offends fundamental fairness by altering a factor that may have affected Plaintiffs’ willingness to enter their plea agreements. (Dkt. # 96, Pg. ID 5703-05 (relying on St. Cyr, 533 U.S. at 323, in which the Supreme Court held that changes to immigration laws which repealed discretionary relief from deportation did not apply retroactively for a number of reasons, including the role such relief may have played in defendants’ plea bargaining).) However, Plaintiffs have not raised breach of contract or Fifth Amendment Takings claims, nor do they cite to any case law supporting a higher degree of scrutiny when reviewing the retroactive application of a law that may affect the government’s contractual obligations (including those established by plea agreements). Because Plaintiffs provide no basis for reviewing the retroactive application of SORA’s lifetime registration requirement using a heightened level of scrutiny—except as to the lifetime registration requirement’s incorporation of the Internet reporting provision—the court will uphold the general retroactive application of the legislation if it is justified by a rational legislative purpose.’” Franklin Cnty. Convention Facilities Auth., 240 F.3d at 550 (6th Cir. 2001) (quoting Pension Benefit Guar. Corp., 467 U.S. at 730).
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Defendants proffer three governmental purposes for the retroactive application of SORA: to enhance public safety, to conform with federal law and avoid losing federal funding, and to create a uniform nation-wide sex offender registration system. (Dkt. # 97, Pg. ID 5738-41.) The retroactive application of the lifetime registration requirement is justified by all three purposes.
i. Public Safety Plaintiffs conceded that public safety is an “important interest,” and the Sixth Circuit has found that states have a compelling interest in protecting public safety. E.g., Grider v. Abramson, 180 F.3d 739, 749 (6th Cir. 1999); Tanks v. Greater Cleveland Reg. Transit Auth., 930 F.2d 475, 480 (6th Cir. 1991). Defendants argue that the retroactive application of the lifetime registration requirement helps achieve this goal because “the public safety concerns posed by sex offenders are much the same, regardless of when they were convicted.” (Dkt. # 97, Pg. ID 5741 (citation omitted).) Plaintiffs disagree, arguing that lifetime registration does not serve public safety but rather is a detriment to public safety. Although opinions about sex offender registries’ effects on public safety may differ (cf. Dkt. # 90, Pg. ID 3843), it was reasonable for the Michigan legislature to “determine[] that a person who has been convicted of committing an offense covered by this act poses a potential serious menace and danger to . . . the people, and particularly the children, of this state,” and SORA’s registration requirements would enhance public safety by “provid[ing] 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.” Mich. Comp. Laws § 28.721a. Just as providing the public and law enforcement with the means to monitor sex offenders
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who were convicted twenty years ago is rationally related to protecting public safety, so too is providing the public and law enforcement with the means to monitor sex offenders who were convicted thirty years ago, or more.
ii. Conform with Federal Law In enacting the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. §§ 16901 et seq., Congress hoped “to protect the public from sex offenders and offenders against children” by “establishing a comprehensive national system for the registration of those offenders.” 42 U.S.C. § 16901. “Rather than establishing a federal agency to implement SORNA, Congress, through its spending power, U.S. Const. Art. I, § 8, directed all states and the District of Columbia to create local registries that comply with specific national standards. 42 U.S.C. §§ 16911(10), 16912(a).” United States v. Felts, 674 F.3d 599, 602 (6th Cir. 2012). For Michigan to comply with SORNA and receive full funding under the Omnibus Crime Control and Safe Street Act of 1968, 42 U.S.C. §§ 3750 et. seq., Michigan must “substantially implement” SORNA. See 42 U.S.C. § 16925(a) (“For any fiscal year after the end of the period for implementation, a jurisdiction that fails, as determined by the Attorney General, to substantially implement this subchapter shall not receive 10 percent of the funds that would otherwise be allocated for that fiscal year to the jurisdiction under subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.).”). Retroactivity is one factor in determining substantial implementation. SORNA “appl[ies] to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of the Act,” 28 C.F.R. § 72.3, and the SMART office published a “Substantial Implementation Checklist” which lists
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retroactivity as one of the factors in determining substantial compliance. (Dkt. # 93-33, Pg. ID 5489.) Thus, even if the retroactive application of SORA’s lifetime registration requirement is not necessary for achieving substantial implementation of SORNA, it is undoubtedly justified by the goal of substantial implementation. In fact, the parties disclosed that “[t]he Substantial Implementation Review conducted by SMART indicated that Michigan’s retroactivity provisions substantially complied with SORNA.” (Dkt. # 90, Pg. ID 3787.)
Plaintiffs assert that the desire to conform with federal law does not provide a rational basis for the retroactive application of the lifetime registration requirement for because SORNA does not compel Michigan to implement SORNA. (Dkt. # 96, Pg. ID 5710 (citing Printz v. United States, 521 U.S. 898, 924 (1997) (“[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts . . . .”)).) This argument is unpersuasive. The Sixth Circuit has interpreted SORNA as a directive to states to comply with federal standards, and the desire to aid in achieving that goal is a rational justification for trying to achieve substantial implementation. Felts, 674 F.3d at 602. Likewise, failing to substantially comply with SORNA would result in lost federal funding. Plaintiffs claim that the lost funding cannot justify retroactivity because the cost of substantially implementing SORNA exceeds the lost federal funding. The parties estimate that Michigan would lose about $1 to $2 million a year in federal funding if Michigan is not substantially compliant with SORNA.
Plaintiffs argue that the cost of SORNA compliance significantly outweighs the potential loss in federal funding. (Dkt. # 96, Pg. ID 5711-12.) This is not an easy
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calculation, in part because Michigan obtains other benefits from implementing a sex offender registry besides the federal funding, including enhanced public safety. This is evident because Michigan had enacted its offender registry before SORNA. Defendants urge the court that “[t]he only costs that can reasonably be considered costs of ‘SORNA compliance’ are the . . . costs of the OffenderWatch software, which amount to only $260,000 for annual maintenance and support.” (Dkt. # 100, Pg. ID 5850.) Defendants’ suggestion is both overinclusive and underinclusive for the purposes of determining whether federal funding is a rational justification for applying the lifetime registration requirement retroactively. It is overinclusive in that major portions of the cost of the OffenderWatch software are unattributable to the retroactive application of the lifetime registration requirement. It is underinclusive because it does not include the cost of training and other personnel costs related to implementing SORNA. Yet, Michigan presumably would need to invest in substantially the same amount of overhead and training whether SORA’s lifetime registration requirement applies retroactively or merely prospectively. The court cannot determine the specific cost of applying the lifetime registration requirement retroactively, but it seems highly likely that it amounts to less than $1 to $2 million dollars per year. Increasing the likelihood of receiving full funding under the Omnibus Crime Control and Safe Street Act of 1968 is a rational legislative purpose justifying the retroactive application of the lifetime registration requirement.
iii. Contributing to National Uniformity of Sex Registration Laws The desire to contribute to the goal of national uniformity of sex registration laws is a legitimate government purpose, too. Congress enacted SORNA specifically to
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“establish[] a comprehensive national system for the registration of [sex] offenders,” 42 U.S.C. § 16901 out of an “awareness that pre-Act registration law consisted of a patchwork of federal and 50 individual state registration systems.” Reynolds v. United States, 132 S. Ct. 975, 978 (2012). Uniformity across jurisdictions can enhance public safety and reduce the burden on registrants by making it easier for registrants (and the public) to be aware of the reporting requirements in any given jurisdiction. The retroactive application of the lifetime registration requirement helps further the goal of uniformity. Seventeen states, three territories, and sixty-one tribes substantially complied with SORNA as of July 2014. (Dkt. # 90, Pg. ID 3776.) Although this falls short of uniformity, the substantial number of jurisdictions that have complied contribute to fair notice and enhanced public safety by normalizing reporting requirements.5
In sum, the court finds that the retroactive application of SORA’s lifetime registration requirement is justified by rational government purposes and is therefore constitutional. The court, however, reiterates that this finding does not apply to those SORA provisions which the court finds constitutionally infirm.
3. The Lifetime Registration Requirement’s Incorporation of the Internet Reporting Provision
By applying the lifetime registration requirement retroactively, SORA also extends its Internet reporting requirement retroactively. The requirement to report “[a]ll
5Plaintiffs note that some aspects of SORA are not directly consistent with SORNA and therefore cannot contribute to national uniformity. (Dkt. # 99, Pg. ID 5812.) Not all of Michigan’s policy decisions must be related to achieving every one of its goals; this is impossible wherever goals conflict. The retroactive application of SORA may be justified by the goal of national uniformity even though some of SORA’s provisions do not contribute to uniformity.
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electronic mail addresses and instant message addresses assigned to the individual . . . and all login names or other identifiers used by the individual when using any electronic mail address or instant messaging system” has a minimal impact on Plaintiffs’ First Amendment rights. Because of this minimal impact, the court must consider whether the reporting requirement’s retroactive application, due to its incorporation through the retroactive lifetime registration requirement, is narrowly tailored to serve a significant government interest, while leaving ample alternative channels for communicating information. Ward, 491 U.S. at 791.
As discussed supra in Section III.C, the reporting requirement is content-neutral, it does not prohibit any protected speech, and it does not interrupt Plaintiffs’ right to anonymous speech by unveiling their identities to the public. Its impact on Plaintiffs’ free speech rights is minimal, and Michigan has a robust interest in protecting the individuals, especially children, from online predators. Nonetheless, Defendants have not briefed whether the retroactive application of the Internet reporting provision, through its incorporation in the lifetime registration requirement, survives intermediate scrutiny. Additional briefing would be helpful in resolving this issue. The court will reserve ruling on this question.
E. Count IX: Violation of the Ex Post Facto Clause Plaintiffs assert that the November 2013 amendment to SORA instituting a requirement that registrants pay a $50.00 annual registration fee violates Article I, Section 9, Clause 3 of the Constitution of the United States, which states, “No Bill of Attainder or ex post facto Law shall be passed.” Mich. Comp. Laws § 28.725a(6) (eff. Apr. 1, 2014).
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Before determining whether the annual registration fee violates the Ex Post Facto Clause, the court must determine whether its review of this claim is barred by the Tax Injunction Act, 28 U.S.C. § 1341. The Tax Injunction Act provides: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C. § 1341.
The purpose of the Tax Injunction Act is “to promote comity and to afford states the broadest independence, consistent with the federal constitution, in the administration of their affairs, particularly revenue raising.” Wright v. McClain, 835 F.2d 143, 144 (6th Cir. 1987). “It is elemental . . . that the label given an assessment by state law is not dispositive of whether the assessment is a ‘tax under state law.’ Rather, the definition of the term ‘tax’ is a question of federal law, and the issue here is whether the assessment is a tax within the meaning of that term as employed by Congress in the Tax Injunction Act.” Hedgepeth v. Tennessee, 215 F.3d 608, 612 (6th Cir. 2000) (quoting Wright, 835 F.2d at 144). To determine whether an assessment constitutes a tax, courts utilize a three-factor test: “(1) the entity that imposes the assessment; (2) the parties upon whom the assessment is imposed; and (3) whether the assessment is expended for general public purposes, or used for the regulation or benefit of the parties upon whom the assessment is imposed.” Id. at 612 (quoting Am. Landfill, Inc. v. Stark/Tuscarawas/Wayne Joint Solid Waste Mgmt. Dist., 166 F.3d 835, 837 (6th Cir. 1999)). If “the assessment falls near the middle of the spectrum between a regulatory fee and a classic tax, the predominant factor is the revenue’s ultimate use. When the ultimate use is to provide a general public benefit, the assessment is likely a tax, while
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an assessment that provides a more narrow benefit to the regulated [entities] is likely a fee.” Id. (quoting Am. Landfill, 166 F.3d at 838). “Fees can serve regulatory purposes as distinguished from general public purposes in two ways: either by discouraging particular conduct through the device of making it more costly, or by generating income ear marked to cover the cost of the regulation.” Id.
Plaintiffs argue that, although the first factor suggests that the registration fee is a tax because it was imposed by the Michigan legislature, the latter two factors support the alternate conclusion. The registration fee is imposed exclusively on registrants, and, pursuant to SORA, 60% of the fee goes to the Michigan State Police to be deposited in the sex offenders registration fund and the other 40% is “retained by the court, local law enforcement agency, sheriff’s department, or departmental post.” Mich. Comp. Laws. § 28.725b. The money credited to the fund may only be used for training and law enforcement purposes related to SORA. Mich. Comp. Laws § 28.725b. In sum. Plaintiffs insist that the fee is not a tax because:
It is imposed only upon a tiny fraction of the stat e’s population; the clear purpose is to help defray the agency’s regulation-related expenses; the charge discourages particular conduct ormakes it more expensive; the bulk of the money is segregated in a spec ially created account; none of the money is paid to general state funds unrelated to SORA’s added costs; and unused SOR funds cannot lapse to the general fund. (Dkt. # 99, Pg. ID 5838.) Plaintiffs’ argument is supported by Mueller v. Raemisch, 740 F.3d 1128 (7th Cir. 2014), in which the Seventh Circuit considered an ex post facto challenge against the annual registration fee for Wisconsin’s sex offender registry. Without explicitly addressing the Tax Injunction Act, the Seventh Circuit noted that the
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parties “acknowledged in this case that if the $100 annual fee is not a bona fide fee, it is a fine rather than a tax.” Id. at 1133.
Sixth Circuit precedent, however, precludes the court from categorizing the annual registration fee as anything but a tax. In Wright, the Sixth Circuit considered whether a Tennessee law requiring parolees to make monthly payments to a supervision fund and a victim’s compensation fund imposed a tax within the meaning of the Tax Injunction Act. 835 F.2d 143. The Sixth Circuit concluded that the charges were taxes, reasoning that:
Although the levies imposed under t he statute are earmarked for the Corrections Department budget and not thegeneral fund, they are no less for revenue raising purposes as distinguished from license or privilege fees, or punitive assessments. The purposes of the charges are to defray the cost to the general public of monitoring andsupervising the behavior of convicted offenders and to compens ate, in some measure, victims of criminal misconduct. Those purposes relate directly to the general welfare of t he citizens of Tennessee and the assessments to fund them are no less general revenue raising levies simply because they are dedicated to a partic ular aspect of the commonwealth. Id. at 145. Similarly, although the annual registration fee is earmarked for the administration of SORA, SORA is hardly a privilege that registrants pay for their own benefit. Instead, the registration fee was implemented to “offset the loss of grant funding and other budget shortfalls” (Dkt. # 96, Pg. ID 5715) and fund the administration of SORA which serves the general welfare by protecting the general population from future sex crimes. Mich. Comp. Laws § 28.721a. Plaintiffs ask the court to disregard Wright because it was decided before the Sixth Circuit adopted the three-part test articulated in Hedgepeth and American Landfill.
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(Dkt. # 99, Pg. ID 5836.) Under Plaintiff’s theory, SORA’s annual registration fee is not a tax because, although the purpose of SORA’s annual registration fee is to serve the general welfare by administering SORA, “the assessment is . . . used for the regulation . . . of the parties upon whom the assessment is imposed.” Hedgepeth, 215 F.3d 608, 612 (emphasis added). Nevertheless, this reasoning conflicts with Wright, and “[i]t is firmly established that one panel of [the Sixth Circuit] cannot overturn a decision of another panel; only the court sitting en banc can overturn such a decision.” United States v. Lanier, 201 F.3d 842, 846 (6th Cir. 2000).
Wright is directly on point; the purpose of the $50 registration fee is “to defray the cost to the general public of monitoring and supervising the behavior of [sex] offenders.” and to compensate, in some measure, victims of criminal misconduct. Wright, 835 F.2d at 145. The Sixth Circuit has not overturned Wright; in fact, both Hedgepeth and American Landfill rely on Wright to hold that the assessments at issue are taxes under the Tax Injunction Act. See Hedgepeth, 215 F.3d at 613 (“The State's assessments are allocated in a manner that make it clear the ultimate purpose of the assessments is to benefit the general public of the State of Tennessee. As such, the assessment must constitute a tax under the [Tax Injunction Act]. The State’s highway fund, the general fund, the police pay supplement fund, and the trooper safety fund ‘relate directly to the general welfare of the citizens of Tennessee and the assessments to fund them are no less general revenue raising levies simply because they are dedicated to a particular aspect of the commonwealth.’ Wright, 835 F.2d at 145.”) (internal quotation mark omitted); Am. Landfill, 166 F.3d at 839 (“Analyzing the assessments in question in this case under the case law above leads to the conclusion that the assessments are
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‘taxes.’ Under Wright v. McClain . . . , the assessments are placed in a fund that, while separate from the general fund, serves public purposes benefitting the entire community.”). Therefore, to the extent that Wright conflicts with later Sixth Circuit case law, Wright controls and dictates that the court treat the registration fees as a tax rather than a privilege fee. Because the annual registration fee constitutes a tax for the purposes of the Tax Injunction Act, the court does not have jurisdiction to decide whether Mich. Comp. Laws § 28.725a(6) violates the Ex Post Facto Clause.
IV. CONCLUSION For the reasons stated above, IT IS ORDERED that Plaintiffs’ Rule 52 Motion for Judgment on the Papers (Dkt. # 96) is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that Defendants’ Rule 52 Motion for Judgment on the Papers (Dkt. # 97) is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that the Sex Offender Registration Act, Mich. Comp. Laws §§ 28.721 et seq., shall be construed consistently with this opinion. IT IS FURTHER ORDERED that SORA’s geographic exclusion zones provisions, Mich. Comp. Laws §§ 28.734, 28.735, are declared unconstitutional and their enforcement is enjoined, as applied to Plaintiffs. IT IS FURTHER ORDERED that the requirement “to report in person and notify the registering authority . . . immediately after . . . [t]he individual . . . begins to regularly operate any vehicle,” Mich. Comp. Laws § 28.725(1)(g), is declared unconstitutional and its enforcement is enjoined, as applied to Plaintiffs.
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IT IS FURTHER ORDERED that the requirement “to report in person and notify the registering authority . . . immediately after . . . [t]he individual establishes any electronic mail or instant message address, or any other designations used in internet communications or postings,” Mich. Comp. Laws § 28.725(1)(f), is declared unconstitutional and its enforcement is enjoined.
IT IS FURTHER ORDERED that the requirement to report “[a]ll telephone numbers . . . routinely used by the individual,” Mich. Comp. Laws § 28.727(1)(h), is declared unconstitutional and its enforcement is enjoined.
IT IS FURTHER ORDERED that the requirement to report “[a]ll electronic mail addresses and instant message addresses . . . routinely used by the individual,” Mich. Comp. Laws § 28.727(1)(I), is declared unconstitutional and its enforcement is enjoined.
IT IS FURTHER ORDERED that the requirement to report “[t]he license plate number, registration number, and description of any motor vehicle, aircraft, or vessel . . . regularly operated by the individual,” Mich. Comp. Laws § 28.727(1)(j), is declared unconstitutional and its enforcement is enjoined, as applied to Plaintiffs.
IT IS FURTHER ORDERED that the court reserves judgment on whether Mich. Comp. Laws § 28.725a(7) is unconstitutional as applied to John Doe #4 and will request additional briefing in a forthcoming order.
IT IS FURTHER ORDERED that the court reserves judgment on whether it is constitutional for the lifetime registration requirement’s incorporation of the requirement to report “[a]ll electronic mail addresses and instant message addresses assigned to the individual . . . and all login names or other identifiers used by the individual when using any electronic mail address or instant messaging system,” Mich. Comp. Laws §
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28.727(1)(i), to be applied retroactively and will request additional briefing in a forthcoming order.
IT IS FURTHER ORDERED that the court reserves judgment on Plaintiffs’ request for costs and attorneys’ fees pursuant to 42 U.S.C. § 1988 and Mich. Const. Art. 9, § 32, pending the resolution of the remaining issues in this case.
IT IS FURTHER ORDERED that judgment is entered in Defendants favor in all other respects.

Dated: March 31, 2015

s/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, March 31, 2015, by electronic and/or ordinary mail.

s/M. Beauchemin Deputy Clerk (313) 234-5525

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

__________________________________________________________________

JOHN DOES #1-5 and MARY DOE,

File No. 2:12-cv-11194

Plaintiffs,

v.

HON. ROBERT H. CLELAND

RICHARD SNYDER, Governor of the State of Michigan, and COL. KRISTE ETUE, Director of the Michigan State Police, in their official capacities,

MAG. JUDGE DAVID R. GRAND

Defendants. __________________________________________________________________

FIRST AMENDED COMPLAINT

PRELIMINARY STATEMENT

1. Plaintiffs John Does #1-4 and Mary Doe are Michigan residents who have

been retroactively required to comply with Michigan’s Sex Offender Registration

Act for the rest of their lives. See M.C.L. § 28.721 et. seq., as amended July 1,

2011 (SORA 2011).

2. The plaintiffs were all charged or convicted before SORA 2011 came into

effect.

3. Under SORA 2011, the plaintiffs have been and will be subjected to

constant supervision; required to report frequently in person; banned from living or

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working in many areas; restricted as to when they can travel; limited in their rights to free speech; hindered from maintaining normal family relationships; identified publicly and falsely as dangerous; and subjected to a vast array of state-imposed restrictions that encompass virtually every facet of their lives. See Obligations, Disabilities, and Restraints Imposed by SORA 2011 (Exh. 1). The plaintiffs must comply with these extensive restrictions and obligations for as long as they live, or face criminal sanctions.
4. The plaintiffs ask this Court to recognize what other courts across the country have increasingly found: that the nature of sex offender registration has fundamentally changed since 2003, when the U.S. Supreme Court upheld a registration scheme that imposed only “minor and indirect” restraints on registrants. See Smith v. Doe, 538 U.S. 84, 100 (2003).
5. Numerous courts have now recognized that the retroactive application of sex offender registration schemes and their associated restrictions violate the constitutional prohibition on ex post facto laws. See, e.g., U.S. v. Juvenile Male, 590 F.3d 924 (9th Cir. 2009), vacated as moot, 131 S.Ct. 2860 (2011); State v. Williams, 952 N.E.2d 1103 (Ohio 2011); Wallace v. State, 905 N.E.2d 371 (Ind. 2009); State v. Letalien, 985 A.2d 4 (Me. 2009); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999 (Alaska 2008).
6. SORA 2011 imposes such extensive and punitive restrictions on the
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plaintiffs that it violates the constitutional prohibition on ex post facto laws. 7. In addition, SORA 2011 violates the plaintiffs’ fundamental rights to
travel, work, speak, and raise their children, without being narrowly tailored to meet a compelling state interest.
8. SORA 2011 also violates the Due Process Clause because it (a) requires John Doe #1 to register even though he was never convicted of a sex offense; (b) requires John Doe #2 to register on a public registry even though he was promised privacy in his plea agreement; and (c) extends the registration periods for John Does #3-4 and Mary Doe from 25 years to life.
9. Finally, many provisions of SORA 2011 are void for vagueness. The plaintiffs are strictly liable for complying with a sweeping and complex law, even though the language of the law does not provide clear notice of what is prohibited or required, either for those subject to it or for those who enforce it, making full compliance with the law impossible.
10. The plaintiffs seek declaratory and injunctive relief barring retroactive application of the law as applied to them, and limiting the application of SORA 2011 to individuals who are actually dangerous.
JURISDICTION 11. Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1343 because the plaintiffs seek redress for the deprivation of rights secured by the U.S.
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Constitution. The plaintiffs’ federal claims are brought under 42 U.S.C. § 1983.

12. The plaintiffs’ claims for declaratory and injunctive relief are authorized

by 28 U.S.C. §§ 2201-2202, by Fed. R. Civ. P. 57 and 65, and by the legal and

equitable powers of this Court.

13. State claims may be heard by virtue of the Court’s supplemental

jurisdiction pursuant to 28 U.S.C. § 1367.

14. Venue is proper in the Eastern District of Michigan pursuant to 28 U.S.C.

§ 1391(b).

THE PLAINTIFFS1

John Doe #1

15. Plaintiff John Doe #1 resides in the Eastern District of Michigan.

16. In 1990, when Mr. Doe #1 was 20 years old, he was fired from his job as

a maintenance worker at McDonalds. He believed he was fired unjustly. Out of

anger and revenge, he tried to rob his former employer.

17. During the attempted robbery, Mr. Doe #1 allegedly threatened to take

the manager’s 12-year-old son hostage. The manager and her son escaped, and

Mr. Doe #1 was apprehended.

18. Mr. Doe #1 pled guilty to armed robbery and weapons charges. He also

pled no contest to kidnapping (for the threat to the boy).

1 The plaintiffs’ declarations attesting to the facts alleged in the complaint are attached as Exhs. 2-6.
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19. Mr. Doe #1 never engaged in any sexual misconduct during the attempted robbery, nor has any such conduct ever been alleged against him.
20. Mr. Doe #1 was sentenced to 20 to 40 years in prison. 21. While incarcerated, Mr. Doe #1 became a model prisoner. He helped run Chance for Life, a program that trains prisoners how to handle conflict productively. He was involved in the Warden’s Forum, a program where older prisoners mentored younger ones. He held leadership positions in various prisoner organizations. He earned the support of his warden for parole. 22. In November 2009, Mr. Doe #1 was paroled. He successfully completed his parole in November 2011. 23. Mr. Doe #1 has led a productive life since his release. He has been employed for approximately two years as a vocational coach, working with special-needs adults. He is engaged to be married. 24. Mr. Doe #1 has not been charged with or convicted of any crime since his convictions stemming from the 1990 restaurant robbery. 25. Under SORA 2011, individuals convicted of kidnapping a minor are required to register as sex offenders for life, even though the offense lacks any sexual component. M.C.L. § 28.722(w)(ii). 26. At the time Mr. Doe #1 was convicted, Michigan did not have a sex offender registry. He therefore did not receive, and could not have received, any
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notice that his conviction for a non-sex offense would subject him to registration as a sex offender.
27. Had Mr. Doe #1 known that a kidnapping conviction would result in sex offender registration, he would have tried to bargain for an alternate disposition that would not have resulted in registration.
28. Under SORA 2011, Mr. Doe #1 is classified as a Tier III offender. He must register and comply with all SORA 2011 requirements for life, even though he has never been accused – let alone been convicted – of any sex offense.
John Doe #2 29. Plaintiff John Doe #2 resides in the Eastern District of Michigan. 30. In the summer of 1996, when Mr. Doe #2 was 18 years old, he had a sexual relationship with a 14-year old girl. 31. John Doe #2 pled guilty to criminal sexual conduct III under the Holmes Youthful Trainee Act (HYTA). HYTA is a record-sealing statute that allows young offenders to have their cases dismissed and the records sealed. 32. Specifically, HYTA provides that if a youth between the ages of 17 and 21 pleads guilty, the court “without entering a judgment of conviction” may “assign that individual to the status of youthful trainee.” M.C.L. § 762.11(1). If the youth completes the trainee period – typically a period of probation – then “the court shall discharge the individual and dismiss the proceedings.” M.C.L. § 762.14(1).
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33. An assignment to youthful trainee status “is not a conviction for a crime.” M.C.L. § 762.14(2). Moreover, “all proceedings regarding the disposition of the criminal charge and the individual's assignment as youthful trainee shall be closed to public inspection,” M.C.L. § 762. 14(4), meaning that court records in HYTA cases are sealed from the public and do not appear on the person’s criminal history.
34. Mr. Doe #2’s plea was based on the state’s promise that his case would be dismissed under HYTA and his records sealed. At no time before his plea was Mr. Doe #2 ever informed that he was required, or might in the future be required, to register as a sex offender. At no time before his plea was Mr. Doe #2 ever informed that information about his case could be posted on a public Internetbased sex offender registry (which at that time did not exist).
35. Mr. Doe #2 received no jail time, but was sentenced to two years of probation. He was discharged from probation early (after 18 months) for good behavior. He also completed sex offender therapy. His case was dismissed and his records sealed.
36. When Mr. Doe #2 was discharged from probation, he went to collect his fingerprints pursuant to the HYTA provisions that sealed his records. He was informed that he was subject to registration as a sex offender, even though he had not been convicted of a sex offense. His registration period was 25 years, making him eligible for removal at age 44.
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37. At the time of Mr. Doe #2’s offense, Michigan had just created it’s sex offender registry. Although the statutory scheme required registration of HYTA trainees, the registry was private. It was available only to law enforcement, and registry information was exempt from Freedom of Information Act requests. Thus, there was no conflict between HYTA’s promise that Mr. Doe #2’s records would be sealed, and the maintenance of a non-public law enforcement database.
38. There was also no requirement that registrants report at regular intervals. It was Mr. Doe #2’s understanding that nothing further was required of him after his initial registration.
39. Mr. Doe #2 went on to lead a productive life. He served in active duty military service twice, earning an honorable discharge both times, as well as awards for outstanding achievement. While in the service, he suffered a traumatic brain injury from a grenade. He now receives disability benefits through the Veterans Administration.
40. In late spring or summer 2011, law enforcement officials contacted Mr. Doe #2 and told him that he was subject to supervision and reporting as a sex offender. Mr. Doe #2 had not previously known that he had retroactively become subject to Michigan’s supervision and reporting requirements (in addition to the original one-time registration) because of the amendments to the state’s SORA.
41. Despite the fact that Mr. Doe #2’s plea was based on an explicit promise
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by the state that his records would be kept private, and despite the fact that he was never convicted of a crime under Michigan law, he is now required to comply with SORA 2011.
42. Under SORA 2011, Mr. Doe #2 was retroactively re-classified as a Tier III offender, and he must now register for life.
43. Mr. Doe #2 was four years and one month older than the girl with whom he had sex. Had the age difference between them been less than four years, Mr. Doe #2 would not be subject to sex offender registration. M.C.L. § 28.722(w)(iv).
44. But for the fact that Mr. Doe #2 is publicly listed on the sex offender registry, schools, employers, landlords, and the public would be unaware of his sealed HYTA case or the facts underlying it. That was precisely the deal that was offered and accepted when he agreed to the HYTA disposition of his case.
45. Upon information and belief, Mr. Doe #2 has no criminal convictions. (He does have a military disciplinary action for marijuana use.)
John Doe #3 46. Plaintiff John Doe #3 resides in the Eastern District of Michigan. 47. In January 1998, when Mr. Doe #3 was 19 years old, he had a sexual relationship with a 14-year-old girl. Mr. Doe #3 had first met the girl at a hair salon where she had washed his hair, and he believed that she was an adult. 48. When the girl’s parents became aware of the relationship, they demanded
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that Mr. Doe #3 marry the girl, or the parents would go to the police. Mr. Doe #3’s family and the girl’s family met, but Mr. Doe #3 initially refused to marry her.
49. The girl’s family then pressed charges. Thereafter the families met again, and Mr. Doe #3 agreed to the marriage. Once this happened, the girl’s family tried to drop the charges. The girl admitted to the police, as is documented in the police reports, that at her father’s request she falsely accused Mr. Doe #3 of sexual assault. Mr. Doe #3 did not ultimately marry the girl.
50. Mr. Doe #3 admitted to the police that he had a sexual relationship with the girl. He pled guilty to attempted criminal sexual conduct III for having sex with a minor. He, too, was sentenced under the Holmes Youthful Trainee Act, with four years probation.
51. At the time of Mr. Doe #3’s offense, Michigan did not yet have a public, Internet-based registry. Mr. Doe #3 was required to register for 25 years, making him eligible for removal at age 45. The requirements for quarterly in-person reporting (during the first 15 days of January, April, July and October) were introduced after his plea was accepted, but they were nevertheless applied retroactively to him.
52. During his last year on probation, Mr. Doe #3 missed the 15-day registration window. Although he tried to report near the end of the 15-day period, the office was closed. He was therefore unable to report until after the 15 days had
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passed. Based on his failure to report, his status under the Holmes Youthful Trainee Act was revoked, and his conviction was entered.
53. Under SORA 2011, Mr. Doe #3 was retroactively re-classified as a Tier III offender, and his registration period was extended from 25 years to life.
54. Mr. Doe #3 was four years and ten months older than the girl with whom he had sex. Had the age difference been less than four years, Mr. Doe #3 would not be subject to registration.
55. Upon information and belief, Mr. Doe #3 has no other criminal convictions.
John Doe #4 56. Plaintiff John Doe #4 resides in the Western District of Michigan. 57. In the summer of 2005, when Mr. Doe #4 was 23 years old, he had a sexual relationship with a woman he met at a nightclub. See Declaration of I.G. (Exh. 7). The club was restricted to those aged 18 and older. 58. Mr. Doe #4 did not realize that the woman had used a fake ID to get into the nightclub, and that she was actually 15. When she became pregnant, Mr. Doe #4 was arrested. It was only after Mr. Doe #4 was arrested that he learned his partner’s actual age. 59. In 2006, Mr. Doe #4 pled guilty to attempted criminal sexual conduct III. 60. Under the terms of the plea agreement, the case was to be dismissed if the
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baby’s DNA did not match that of Mr. Doe #4. The girl in the case had had other sexual partners, and it was unclear with whom she had become pregnant. It turned out that Mr. Doe #4 had fathered the child, and thus the case was not dismissed.
61. Mr. Doe #4 was sentenced to five years probation, which he served successfully. He also completed sex offender counseling.
62. At the time of his conviction, Mr. Doe #4 was required to register for 25 years, making him eligible for removal at age 49.
63. Under SORA 2011, Mr. Doe #4 was retroactively re-classified as a Tier III offender, and his registration period was extended from 25 years to life.
64. Upon information and belief, Mr. Doe #4’s only other criminal convictions are for driving on a suspended license.
Mary Doe 65. Plaintiff Mary Doe resides in the Eastern District of Michigan. 66. In 2003, while living in Ohio, she was convicted of unlawful sexual conduct with a minor for having a sexual relationship with a 15-year-old male. 67. She was sentenced to three years in prison. 68. At the time, Ohio’s SORA was risk-based rather than offense-based. A person’s registration requirements, including the length and frequency of reporting obligations, were determined through an individualized adjudication of risk. 69. Based on a psychological evaluation, the court concluded that Ms. Doe was
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neither a “sexual predator” nor a “habitual offender.” She was assigned to the lowest risk level of the registry, which required address verification once a year for ten years.
70. Although Ohio has since moved to an offense-based registration scheme similar to Michigan’s SORA 2011 (in order to comply with the same federal Adam Walsh requirements that led to the adoption of SORA 2011), the Ohio Supreme Court has held that people like Ms. Doe (who received individualized risk-based hearings) cannot be retroactively reclassified under an offense-based scheme. The court held that such legislative reclassification of individuals who have been adjudicated by the judiciary violates the separation of powers. See State v. Bodyke, 933 N.E.2d 753 (Ohio 2010).
71. The Ohio Supreme Court also held that Ohio’s new law – which requires extensive reporting and lengthens registration periods similar to SORA 2011 – cannot be applied retroactively without violating the ex post facto clause. See State v. Williams, 952 N.E.2d 1103 (Ohio 2011).
72. Thus, in Ohio, Ms. Doe could not be required to register for more than ten years, nor could she be subjected to more significant restrictions than those imposed under the terms of her initial registration order.
73. In May 2004, after serving less than eight months, Ms. Doe was granted judicial release. Her sentence was modified to four years of probation and 200
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hours of community service. She successfully completed both probation and sex offender therapy, and was discharged from probation in April 2008.
74. When Ms. Doe received judicial release in 2004, she was required under the terms of her probation to move to Michigan, where she lived with her parents. Under Michigan law at the time, she was required to register quarterly for 25 years, becoming eligible for removal at age 54.
75. Ms. Doe and her ex-husband have shared parenting time with their 13-yearold daughter. The daughter attends school in Michigan. Ms. Doe remarried in 2010, and her husband works in Michigan. Ms. Doe’s family, including her elderly parents and her extended family, all live in Michigan. For these reasons, Ms. Doe wishes to live in Michigan.
76. Under SORA 2011, Ms. Doe was retroactively re-classified as a Tier III offender, and her registration period was extended from 25 years to life.
77. Upon information and belief, Ms. Doe has no other criminal convictions. THE DEFENDANTS
Governor Richard Snyder 78. Defendant Richard Snyder is the Governor of Michigan. He is sued in his official capacity. 79. Pursuant to Article 5, §1 of the Michigan Constitution, the executive power of the state is vested in the governor. The Michigan Constitution further provides
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that the governor shall take care that applicable federal and state laws are faithfully executed. Mich. Const., Art. 5, § 8. Defendant Snyder is ultimately responsible for the enforcement of the laws of this state, and for supervision of all state departments, including the Michigan State Police.
80. The Governor is an appropriate defendant in a case challenging the constitutionality of a state statute.
Colonel Kriste Etue 81. Defendant Colonel Kriste Etue is the director of the Michigan State Police. She is sued in her official capacity. 82. The Michigan State Police maintains Michigan’s sex offender registry. M.C.L. § 28.721 et seq. The State Police’s responsibilities include enforcing SORA 2011, maintaining the state’s database of sex offenders, maintaining an online public sex offender registry, registering offenders (along with other law enforcement agencies), developing registration forms, providing statutorilyrequired notices to registrants, collecting registration fees, and coordinating with national law enforcement and the national sex offender registry. See M.C.L. §§ 28.724, 28.724a, and 28.725 et seq. 83. The director of the Michigan State Police is an appropriate defendant in a case challenging the constitutionality of Michigan’s Sex Offender Registration Act.
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FACTUAL ALLEGATIONS: HISTORICAL EVOLUTION OF SORA 2011 84. Michigan passed its first sex offender registration law in 1994. Mich. Pub.
Act 295 (1994) (eff. 10/1/95). Before that time, Michigan did not require anyone to register as a sex offender for any purpose.
85. The 1994 statute established a private database containing basic information about people convicted of sex offenses. Registration information was available only to law enforcement, and was exempt from all public disclosure. A person who divulged registry information to the public was guilty of a misdemeanor, and a registrant whose information was revealed had a civil cause of action for treble damages. Mich. Pub. Act 295, Sec. 10 (1994).
86. The statute did not require regular verification or reporting. 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. Mich. Pub. Act 295, Sec. 5(1) (1994).
87. Registry information was maintained for 25 years for individuals convicted of one offense, and for life for individuals convicted of multiple offenses. Mich. Pub. Act 295, Sec. 5(3)-(4) (1994).
88. The statute applied retroactively to individuals whose convictions occurred before October 1, 1995, but only if they were still incarcerated, on probation or parole, or under the jurisdiction of the juvenile division of the probate court or
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department of social services on that date. Mich. Pub. Act 295, Sec. 3(b)-(c) (1994).
89. Since that time, the legislature has repeatedly amended the statute, each time imposing a stricter regime with new burdens on registrants, and covering more people and conduct.
90. Effective April 1, 1997, the statute’s confidentiality protections were relaxed. Law enforcement agencies were required to make registry information available to the public (for zip codes within the agency’s jurisdiction) during regular business hours. Mich. Pub. Act 494, Sec. 10(2) (1996). The public could view a paper copy of the registry by visiting their local law enforcement agency.
91. In 1999, registry information became available to the public on the Internet through the public sex offender registry. Mich. Pub. Act 85, Sec. 8(2), 10(2)(3) (1999).
92. New in-person reporting requirements were imposed, with registrants being required to report quarterly or yearly, depending on their offense. Mich. Pub. Act 85, Sec. 5a(4) (1999).
93. In addition, the 1999 amendments: expanded the list of offenses for which registration was required and the categories of individuals required to register for life; lengthened the penalties for registration-related offenses; required registrants to maintain a driver’s license or personal identification card; made registry
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information on certain juveniles public; required fingerprinting and digitized photographs for registrants; and mandated registration for out-of-state students, people working in the state, and anyone convicted of a listed offense or required to register in another state or country. Mich. Pub. Act 85 (1999).
94. In 2002, additional requirements were imposed on both resident and nonresident registrants to report (in person) when they enrolled, disenrolled, worked, or volunteered at institutions of higher learning. Mich. Pub. Act 542, Sec. 4a (2002).
95. Amendments in 2004 required the Internet-based public sex offender registry to include photographs. Mich. Pub. Act 238 (2004). In addition, a fee was imposed on registrants. Failure to pay the fee was made a crime. Mich. Pub. Act 237 (2004).
96. The 2004 amendments also removed the registration requirement for offenders adjudicated under the Holmes Youthful Trainee Act (HYTA) after October 1, 2004, unless they lost their HYTA status. Youth assigned to HYTA before that date, however, were still required to register, though they could petition the court for reduced registration after 10 years. Mich. Pub. Acts 239, 240 (2004).
97. Further amendments, effective January 1, 2006, barred registrants (with limited exceptions) from working, residing, or loitering within 1000 feet of school property, and imposed criminal penalties for noncompliance. Mich. Pub. Acts 121,
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127 (2005). 98. In addition, the penalties for registration-related offenses were increased.
Mich. Pub. Act 132 (2005). 99. In 2006, the statute was amended to allow subscribing members of the
public to be notified electronically when a person registers or moves into a particular zip code. Mich. Pub. Act. 46 (2006).
100. Effective July 1, 2011, Michigan’s Sex Offender Registration Act was extensively amended to comply with the federal Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq., which is Title I of the Adam Walsh Child Protection and Safety Act of 2006 (Public Law 109-248).
101. Although states were required to comply with SORNA by July 27, 2011, or lose federal law enforcement funds, to date only 15 states have substantially complied. The vast majority of states have elected not to comply because they are concerned about the costs and effectiveness of the federal SORNA requirements.
102. As outlined in more detail below, SORA 2011 fundamentally changed Michigan’s sex offender registry by categorizing registrants into tiers; requiring inperson reporting of vast amounts of personal information; and retroactively lengthening the registration period for most registrants. In addition, SORA 2011 imposed new duties on local law enforcement agencies.
103. In sum, Michigan’s sex offender registry, which began as a private law
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enforcement database in 1995, has changed radically in the last 17 years. SORA 2011 subjects registrants to obligations, restraints, disabilities, and punishment of a different character and different order of magnitude than the original sex offender statutes.
FACTUAL ALLEGATIONS: TIER CLASSIFICATION AND RETROACTIVE APPLICATION OF SORA
2011 104. SORA 2011 classifies registrants into tiers. A registrant’s tierclassification determines the length of time that a person must register and the frequency of reporting. 105. Tier I registrants must register and comply with all obligations imposed by SORA 2011 for 15 years; Tier II registrants must register and comply for 25 years; and Tier III registrants must register and comply for life. M.C.L. §§ 28.722(r)-(w); 28.725(10)-(13). 106. Tier classifications are based solely on the offense of conviction. 107. Tier classifications are not based on, and do not correspond to, a registrant’s actual risk of re-offending or the danger any registrant poses to the public. 108. Prior to SORA 2011, most Michigan registrants were required to register for 25 years. 109. SORA 2011 was applied retroactively. Registrants were assigned to a tier
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based solely on their offense of conviction. 110. People who previously had been required to register for 25 years, and who
were retroactively assigned to Tier III, had their registration periods extended to life. There was no individualized determination about their risk or whether lifetime registration was warranted.
111. Although the plaintiffs have clinically been determined to be low risk (see below), under SORA 2011 they were retroactively classified as Tier III offenders and must register and comply with SORA 2011 until they die.
112. Even upon the clearest proof that the plaintiffs are not dangerous, there is no mechanism in the statute that would allow the plaintiffs to have their registration obligations eliminated or reduced.
113. SORA 2011 is not limited to individuals who committed sex offenses, but requires registration and reporting by individuals, such as John Doe #1, who were convicted of other offenses that do not have a sexual component.
114. SORA 2011 is not limited to convicted individuals, but requires registration and reporting by individuals, such as John Doe #2, who were never convicted of a crime. SORA 2011 also requires registration and reporting by youths aged 14 or older who were adjudicated as juveniles.
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FACTUAL ALLEGATIONS: IMPACT OF SORA 2011 ON THE PLAINTIFFS 115. SORA 2011 imposes obligations, disabilities, and restraints that are so extensive that they cannot be set out in full here, but are instead listed in Exhibit 1, which is incorporated by reference. 116. By way of summary, SORA 2011 subjects the plaintiffs to continuous reporting, surveillance, and supervision. In addition, SORA 2011 severely limits their ability to direct the upbringing of their children; find housing and employment; get an education; travel; engage in free speech activities (including use of the Internet); be free from harassment and stigma; and understand what is required of them under the statute. 117. Finally, registration under SORA 2011 triggers a vast array of additional obligations, disabilities, and restraints under other federal, state, and local laws, as well as private policies barring or limiting registrants from access to goods or services available to the public.
A. Reporting, Surveillance, and Supervision 118. As Tier III registrants, the plaintiffs must report in person every three months within a specified 15-day period, M.C.L. 28.725a(3)(c), and must provide:
• all names and nicknames, Social Security number, and date of birth;
• residential address, including any address where the individual expects to spend more than seven days, as well as the dates of any such temporary stays;
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• employer names and addresses, including information on any person who agrees to hire a registrant for a temporary job, as well as the routes of travel for non-stationary employment;
• schools attending or schools to which accepted; • telephone numbers registered to the individual or routinely used; • e-mail and instant message addresses, log-in names or other
identifiers assigned to the individual or routinely used; • all other designations used in Internet communications or postings; • license plate and registration information for any vehicle owned or
regularly operated by the individual, and the location where that vehicle is kept; • driver’s license or personal ID card; • passport and immigration documents; • occupational license information; and • a complete physical description.
M.C.L. § 28.727(1).
119. SORA 2011 also requires the plaintiffs to provide a photograph,
fingerprints, and palm prints. If a plaintiff’s appearance changes, he or she must
update the photograph. M.C.L. §§ 28.725a(5); 28.727(1)(q).
120. In addition to reporting in person at regular intervals, the plaintiffs must
report in person within three business days whenever certain information changes.
M.C.L. § 28.722(g). The immediate, in-person reporting requirement is triggered
whenever the plaintiffs:
• change their residence; • begin, change, or discontinue employment; • enroll or dis-enroll as a student; • change their name; • intend to travel for more than seven days; • establish an e-mail address, instant message address, or other
Internet designation; and
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• buy or begin using a vehicle, or cease owning or using a vehicle. M.C.L. § 28.725(1).
121. There are no good-cause exceptions to the reporting requirements or to the “immediate” notification requirements. Regardless of illness, injury, transportation problems, or other emergencies, the plaintiffs must report in person within three days or face criminal charges.
122. SORA 2011’s reporting, surveillance, and supervision requirements are similar to, but more restrictive and onerous than, the reporting, surveillance, and supervision that the plaintiffs experienced while serving their sentences on probation or parole.
123. Under SORA 2011, the plaintiffs must report significantly more information than what they were required to report while they were serving their sentences on probation or parole.
124. SORA 2011’s requirement that minor changes be reported in person within three business days is a level of reporting that far exceeds what the plaintiffs experienced while they were serving their sentences on probation or parole.
125. As a result of SORA 2011’s immediate reporting requirements, coupled with the quarterly reporting requirements, the plaintiffs must – for the rest of their lives – report in person to law enforcement with a frequency that is similar to, and often greater than, their reporting obligations when they were on probation or
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parole. 126. For the plaintiffs, the lifetime surveillance imposed by these reporting
requirements is not only intrusive, but burdensome. The time required to register or update information varies depending on where and when the plaintiffs report. Each registration can take up to an hour-and-a-half, not including travel time.
B. Family and Parenting 127. SORA 2011 has severely impaired the plaintiffs’ family relationships and parenting, in large part because the statute bars the plaintiffs from “loitering” within 1000 feet of school property. M.C.L. § 28.734. “To 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.” M.C.L. § 28.733(b). This provision contains no exception for the plaintiff-parents, who are observing or contacting their own children. 128. For example, Mr. Doe #1’s fiancé has a 14-year-old daughter. Mr. Doe #1 cannot attend his future step-daughter’s school and extra-curricular events. 129. The same is true for Mr. Doe #2. His ability to participate in the upbringing of his daughter is limited because, as a registered sex offender, he cannot participate in her school and extra-curricular events. 130. Mr. Doe #2’s status as a registered sex offender was cited by a judge in support of an order awarding primary custody of his daughter to her mother.
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131. Mr. Doe #3’s status as a registered sex offender, too, has interfered with his family relationships.
132. Mr. Doe #3 is married and has two boys, ages 4 and 8. He and his wife, who is a schoolteacher, are expecting their third child in the fall of 2012.
133. Due to his status as a registered sex offender, Mr. Doe #3 has been barred from attending parent-teacher conferences. His older son plays basketball and football, while his younger son plays soccer. Because of the vagueness of the statute, Mr. Doe #3 does not know if or how SORA 2011 applies to his parenting activities. He is uncertain about where he can and cannot take his sons. He does not know which of their events he can or cannot attend, and he fears prosecution if he goes to their games.
134. Mr. Doe #4’s status as a registrant has similarly strained his family relationships.
135. Mr. Doe #4 is married and has two children, ages 10 and 4, with his wife. 136. Other parents do not want their children to be friends with Mr. Doe #4’s children because Mr. Doe #4 is on the registry. 137. Mr. Doe #4’s wife left him in part because his status as a registered sex offender harmed the family. She has told him that if he is able to get off the registry, she will return. 138. Due to his status as a registered sex offender, Mr. Doe #4 is unable to
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participate in many parenting activities. He cannot attend his 10-year-old daughter’s volleyball games, basketball games, and other school or extra-curricular functions. Mr. Doe #4’s daughter asks him why he never comes to her events. Mr. Doe #4 also cannot pick up or drop off his daughter at school. Mr. Doe #4 is concerned that he will be similarly unable to participate in his son’s education and activities when the boy starts school.
139. Mr. Doe #4 also has a five-year-old daughter with the victim in his case. The victim/ mother very much wants Mr. Doe #4 and their child to have a normal father/daughter relationship, but SORA 2011 has severely limited his ability to do so. See I.G. Decl. (Exh. 7).
140. Ms. Doe’s status as a registered sex offender has likewise impaired her ability to raise her daughter. When her daughter was attending school in Ohio, Ms. Doe was able to attend parent-teacher conferences, school events, and extracurricular programs, and otherwise to participate in her daughter’s education.
141. Now that Ms. Doe’s daughter attends school in Michigan, Ms. Doe is barred from parent-teacher conferences, the school building, and extra-curricular events. She has been unable to attend her daughter’s school plays and will be unable to attend her daughter’s eighth grade graduation.
C. Housing 142. SORA 2011 also severely limits the plaintiffs’ access to housing.
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143. SORA 2011 bars the plaintiffs from “residing” within 1000 feet of school property, making a substantial amount of housing unavailable as a matter of law. M.C.L. § 28.735. The plaintiffs are also prohibited from living with family members if those family members live within 1000 feet of school property.
144. Because sex offender registry address information is public, many landlords outside geographic exclusion zones refuse to rent to registrants, since their properties can then be easily identified on the registry.
145. When Mr. Doe #1 was first released from prison, he hoped to live with his family until he could get back on his feet. He could not live with either his mother or his sister, however, because they both lived within 1000 feet of a school. He also could not live with another sister or his aunt because the Department of Corrections does not allow registered sex offenders to live in homes with children (even though Mr. Doe #1’s crime was a non-sex offense robbery that had occurred two decades earlier). He therefore was released to a half-way house.
146. Mr. Doe #1 was rejected by landlords because of his status as a registered sex offender. He was finally able to get an apartment when he had a friend lease a unit for him. He now lives in a flat owned by his aunt.
147. Mr. Doe #2’s status as a registrant has likewise prevented him from finding housing. When looking for apartments, Mr. Doe #2 was rejected because he is a registrant.
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148. Mr. Doe #2 has been unable to secure his own housing, and stays with friends or family if they will let him and if their homes are not within a geographic exclusion zone.
149. At one point Mr. Doe #2 asked his cousin for a place to stay. His cousin refused, explaining that the neighbors would find Mr. Doe #2 on the registry, and would then seek to have both of them (Mr. Doe #2 and his cousin) evicted.
150. As a disabled military veteran, Mr. Doe #2 could qualify for subsidized housing. He identified a program that would have provided him with a Section 8 voucher for his own apartment. But under federal law, individuals subject to lifetime sex offender registration are barred from subsidized housing. Therefore Mr. Doe #2 was ineligible. 24 C.F.R. § 5.856.
151. Mr. Doe #3 and his wife would like to move their growing family to a larger home, but they are restricted in their search for a new house, as they cannot move to a home that is within 1000 feet of a school.
152. Likewise, because Mr. Doe #4 is on the registry, he has had severe housing problems in addition to the loss of his home to foreclosure when the registry cost him his job (see below).
153. When Mr. Doe #4 has tried to rent an apartment, landlords have told him that they will not rent to anyone who is on the sex offender registry.
154. For a time Mr. Doe #4 was registered at his mother’s address. But
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neighbors in her apartment complex complained, and his mother was threatened with eviction, so he left.
155. Mr. Doe #4 then lived with his sister. But in February 2012, the sister’s landlord threatened her with eviction if Mr. Doe #4 continued to live with her.
156. Mr. Doe #4 is now homeless. 157. Although Mr. Doe #4’s family members would be happy to have him stay if he were not on the registry, they fear that they will lose their housing if they allow him to reside with them. 158. The geographic restrictions also affect Ms. Doe’s ability to secure stable housing. Several years ago, she and her husband were able to rent a home from one of her distant cousins. When the cousin lost the home to foreclosure, Ms. Doe and her husband were notified by the bank that they might be forced to vacate the home on short notice. 159. Despite an exhaustive search, Ms. Doe and her husband were unable to find alternate affordable housing that was not within a restricted zone. Although at present the bank has allowed Ms. Doe and her family to remain in the home, she is afraid that if she is required to vacate the home on short notice in the future, she and her husband will be unable to find housing.
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D. Employment 160. SORA 2011 bars the plaintiffs from working within 1000 feet of school property, making a substantial number of jobs unavailable to the plaintiffs as a matter of law. M.C.L. § 28.735. 161. Moreover, under SORA 2011, information about employers who hire the plaintiffs is posted on the public sex offender registry. M.C.L. § 28.728(2)(d). The public posting of employer information creates a significant disincentive for employers to hire the plaintiffs. 162. Mr. Doe #1 has repeatedly lost employment opportunities because of his status as a registered sex offender. When he was first released from prison, he participated in a reentry program designed to help him find employment. 163. Mr. Doe #1 actively sought work and flagged potential jobs off employment lists. His case manager told him time and time again that those employers would not hire registered sex offenders. The occupations where he was denied employment included garbage collection and fast food restaurant work. His job search was further restricted because he could only apply for jobs located more than 1000 feet from a school. 164. Mr. Doe #1 tried to open his own business as a subcontractor on a home preservation project to restore foreclosed homes. Mr. Doe #1’s parole agent required him to close the business because many contracting jobs are within
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geographic exclusion zones where registered sex offenders are prohibited from working.
165. Mr. Doe #1 finally convinced the organization that ran his reentry program to hire him for its programs for special needs adults, and he has been successfully employed there since.
166. Mr. Doe #2 has also been harmed in his search for work. Although he need not list his sealed HYTA case on job applications asking whether he has a criminal record, employers learn of his sealed case and refuse to hire him because he is on the registry.
167. Mr. Doe #2 also hoped to start a program mentoring at-risk youth by engaging them in construction projects. He was unable to do so because his status as a registered sex offender would have made it impossible for him to work with youth.
168. Mr. Doe #3 is a co-owner of a family business, and has worked there for many years. Although he is employed now, he is concerned that if he were unable to continue working in the family business, his status as a registrant would prevent him from finding another job.
169. As to Mr. Doe #4, his status as a registered sex offender has prevented him from finding or holding a job.
170. At the time of his offense and for much of the time he was on probation,
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Mr. Doe #4 worked at an auto parts factory. He did well, repeatedly earning raises over a three-year period.
171. In 2008, however, an anonymous caller informed the factory’s management that Mr. Doe #4 was listed on the sex offender registry. Mr. Doe #4 was fired, and escorted off the premises by security.
172. The fact that Mr. Doe #4 was listed on the public sex offender registry made information about his offense readily available to the anonymous caller and directly contributed to Mr. Doe #4’s firing.
173. Mr. Doe #4 could not pay his bills after he was fired. As a result, he lost his home to foreclosure, and his car was repossessed.
174. Mr. Doe #4 has had great difficulty finding work since then because so few employers will hire registrants.
175. Mr. Doe #4 found a job with a finishing company and worked there for approximately six months. Then the newspaper Busted, which republishes photos and information from the sex offender registry in a newsprint format, published the registry listing for Mr. Doe #4. The newspaper appeared in the break room at his work. Mr. Doe #4 lost his job the next day.
176. The geographic restrictions on where registrants can work have further harmed Mr. Doe #4’s job search. For example, Mr. Doe #4 was offered a factory job by American Staffing, but the factory was within 1000 feet of a school.
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Therefore Mr. Doe #4 could not accept the offer. 177. Mr. Doe #4 is presently unemployed, and has no source of income other
than odd jobs. 178. Ms. Doe’s status as a registrant has also impaired her ability to find work.
Ms. Doe recently earned a degree in medical billing. Through her career services office she was placed in an externship. Although the host organization has been pleased with her work, the employer is concerned about hiring her because the employer’s information would then be posted on the sex offender registry.
179. Ms. Doe has submitted over 100 resumes for other jobs, but has been unable to find employment.
E. Education 180. SORA 2011 has also made it more difficult for the plaintiffs to get an education. 181. For example, Mr. Doe #2 wanted to pursue a degree as a medical assistant. When he applied to one such program through the Everest Institute, he was denied because he was on the sex offender registry. Because Mr. Doe #2’s HYTA case is sealed, the Everest Institute would not have known of his history but for the fact that Mr. Doe #2 is listed on the registry. 182. Mr. Doe #2 was eventually able to earn a degree as a medical assistant through another institution. He then wanted to become a cardio-vascular
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stenographer. That degree requires clinical courses. Because of Mr. Doe #2’s status as a registered sex offender, he is not allowed to take clinical courses in a hospital, and therefore cannot pursue his chosen degree.
183. Mr. Doe #3’s status as a registered sex offender has limited his ability to get an education. Mr. Doe #3 enrolled in college in 2005. When he learned that he had to report that he was attending college, he was concerned that his college classmates would find out that he was a registered sex offender. Mr. Doe #3 dropped out of school rather than risk facing their hostility.
184. Because of the registry, Mr. Doe #4 has likewise had difficulty getting an education. He was rejected by several GED programs because he is a registered sex offender.
185. With the assistance of his probation officer, Mr. Doe #4 was eventually able to identify a GED program that accepts registrants, and is currently pursuing his GED.
F. Travel 186. The plaintiffs’ status as registrants has severely restricted their ability to travel. 187. The plaintiffs must provide advance notice when they intend to travel anywhere for more than seven days. They must tell the police where they are going, where they will stay, how long they will be there, and when they will return.
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M.C.L. § 28.725(1). 188. The plaintiffs must provide 21 days advance notice if they travel outside
the U.S. for more than seven days. M.C.L. § 28.725(7). 189. In addition, the plaintiffs must plan their travel so that they are able to
register in person during the first 15 days of January, April, July and October, as required by the statute.
190. If the plaintiffs travel, they must comply with any applicable sex offender registration laws in other jurisdictions. Because sex offender laws are exceedingly complex and vary from state to state, it is extremely difficult to obtain accurate information about either affirmative reporting obligations (such as registering one’s presence in a state) or prohibitions on ordinary behavior (such as visiting a library or park) in other jurisdictions. See Consequences Triggered by Sex Offender Registration: A National Sample, Attachment A to Declaration of James J. Prescott (Exh. 8).
191. Mr. Doe #1 visits friends and family for no more than six days at a time because otherwise he would be required to notify law enforcement in person about his travel plans.
192. Mr. Doe #2 is a military veteran, with friends all over the country and all over the world. He enjoys travel. He frequently drives to see his parents in Florida and his friends in Georgia, Maryland, Tennessee, and other places.
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193. Although Mr. Doe #2 would like to take extended trips to visit his friends and family, he does not do so, but rather limits his trips to seven days or less, including driving time.
194. Mr. Doe #2 would like to travel internationally to see friends from the military who are stationed overseas. One of his friends, a paraplegic military veteran, has invited Mr. Doe #2 to accompany him on a trip to Panama.
195. Mr. Doe #2 has been unable to take these trips because SORA 2011 requires extensive advance notice for international travel. Mr. Doe #2 is concerned that he cannot comply with the restrictions on international travel relating to where he will be staying at each stage of his trip – information that he cannot know in advance given the nature of his travel.
196. Mr. Doe #3’s status as a registrant has also impaired his ability to travel. In April 2011, Mr. Doe #3 took his wife on a four-day getaway to a resort in Mexico to celebrate her graduation from a program at the University of Michigan. On their return, border agents separated him from his wife and interrogated him for hours. He was asked questions about his sex offender status. Because of that experience, Mr. Doe #3 is reluctant to travel outside the United States again.
197. Mr. Doe #4’s status has limited his travel as well. In 2007, Mr. Doe #4 wanted to travel to Puerto Rico to visit a sick relative, but was unable to do so because his registration obligations made the trip too complicated, and put him at
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risk of felonious noncompliance. 198. Ms. Doe and her husband would like to take extended trips to visit friends
and family. However, they only take trips that last seven days or less, including driving time, due to the requirement that Ms. Doe report in person if she goes anywhere for more than seven days.
199. On one occasion, Ms. Doe took a wrong turn while driving in Detroit, and accidentally got into a traffic lane leading to the tunnel to Canada. Although Ms. Doe did not cross into Canada, when she turned around, she had to go back through the United States border checkpoint.
200. Because of Ms. Doe’s status as a registrant, border agents demanded that Ms. Doe and her family get out of the vehicle. The agents searched the car, interrogated Ms. Doe, her husband, and her daughter separately, and suggested that Ms. Doe was abducting her daughter. The family was eventually released.
201. Because of the requirements of SORA 2011, Ms. Doe has decided not to travel outside the United States, although she would like to do so.
G. Speech & Internet 202. SORA 2011 severely restricts the plaintiffs’ ability to speak freely on the Internet. The plaintiffs not only must provide law enforcement with all electronic mail addresses, instant message addresses, log-in names, or other identifiers that are assigned to or routinely used by them, M.C.L. § 28.727(1)(i), but must also
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report in person within three days whenever they establish any electronic mail address, instant message address, or other designation used in Internet communications or postings. M.C.L. § 28.725(1)(f).
203. The plaintiffs are concerned about using the Internet because SORA 2011 is unclear about whether, for example, they must report immediately and in person if they set up an on-line account to pay their taxes, register with Netflix, purchase or review products on Amazon, or use a college on-line bulletin board.
204. Mr. Doe #4 does not use the Internet because he would be required under SORA 2011 to register all email and Internet identifiers, and would need to report constantly in order to use different websites with different user-names.
205. Mr. Doe #4 would like to communicate with his family on Facebook, but does not do so because he would have to register information about his account.
206. Ms. Doe’s status as a registrant similarly restricts her freedom to use the Internet. Ms. Doe has twice established a Facebook account, only to have it deleted without notice. Although Facebook gave her no reason for shutting down her account, Facebook prohibits registrants from using its site. Ms. Doe had been using her Facebook account both to communicate with friends and family and to organize a high school reunion. She is now unable to do so.
207. In addition, Ms. Doe is afraid that because she must provide all email and Internet identifiers pursuant to SORA 2011, her Internet use will be monitored.
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H. False Information and Public Stigmatization 208. The sex offender registry publicly and falsely labels Mr. Doe #1 as a “convicted sex offender,” which he is not, as he was never convicted of a sex offense. 209. The sex offender registry publicly and falsely labels Mr. Doe #2 as a “convicted sex offender,” which he is not, as his case was dismissed and he was never convicted of a crime. 210. The public registry website labels registrants by tier. M.C.L. § 28.728(2)(l). All of the plaintiffs are labeled as Tier III, which stigmatizes them, and publicly and falsely identifies them as among the most dangerous sex offenders on the registry. 211. The public registry website posts extensive personal information about each registrant, including residential address, employer address, date of birth, school information, vehicle information, physical description (weight, height, etc.), and a photograph. M.C.L. § 28.728(2). 212. Because they are stigmatized as sex offenders on the public registry website, the plaintiffs and their families are subjected to harassment, social ostracism, and even threats of violence. 213. For example, in the fall of 2010, Mr. Doe #4 received an anonymous death threat by mail. Inside an envelope was a print-out of his page from the sex
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offender registry with his photo. His eyes were blacked out on the photo, and on the paper were the words “You will die.” Mr. Doe #4 has also been called a child molester on the street, and his wife is regularly asked why she is married to a sex offender.
I. Vagueness, Strict Liability, and Impossibility of Compliance 214. The plaintiffs have been further harmed because the restrictions and obligations of SORA 2011 are so vague that the plaintiffs are unable to know whether or not they are in violation of the law, or are so extensive and pervasive that the plaintiffs are literally unable to comply with the law. Moreover, different law enforcement agencies in different places apply the requirements of SORA 2011 differently. 215. SORA 2011’s requirements for reporting personal information are so vague that the plaintiffs do not understand what information must be reported, or what changes in information subject them to the in-person immediate reporting requirement. 216. For example, Mr. Doe #1’s vehicle breaks down frequently. He does not know whether he must report each such period of non-use under M.C.L. § 28.725(1)(g), which requires him to report in person within three days if “operation of [his] vehicle is discontinued.” 217. SORA 2011 also requires Mr. Doe #1 to report the location where he
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stores his vehicle. M.C.L. § 28.727(1)(j). He does not know if he must re-register each time he takes his car to the garage for repairs.
218. Similarly, Mr. Doe #4 is confused about the vehicle reporting requirements. He does not have a vehicle of his own, but has been told by the police that if he borrows a car more than three times, he must immediately report in person to provide the vehicle information. M.C.L. § 28.727(1)(j) (“regular operation” of a vehicle).
219. Mr. Doe #4 does not have a phone of his own. He is unclear about whether M.C.L. § 28.727(1)(h) requires him to register his mother’s telephone number if he uses her phone on occasion, including to get messages from counsel.
220. Ms. Doe has registered a vehicle that she owns, but when it breaks down, she sometimes borrows her parents’ cars. Neither she (nor counsel) could determine whether her use of her parents’ cars qualifies as “regularly operat[ing]” a vehicle. M.C.L. § 28.725(1)(g).
221. The plaintiffs who use the Internet are also unable to determine what information they must report under M.C.L. § 28.725(1)(f).
222. The plaintiffs often cannot know if they are working, residing, or “loitering” within 1000 feet of school property because the property boundaries are unknown and the distances are impossible to measure without sophisticated equipment.
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223. For example, Mr. Doe #1, when looking for an apartment, could not determine whether or not residences were within a geographic exclusion zone. He did not know whether the 1000 feet was measured building to building or propertyline to property-line. He also had no easy way to gauge where school property lines were located.
224. Similarly, Mr. Doe #4 does not know whether he can take his own children to a playground on school property, or to a park, if other children are present. He does not know whether he can attend a minor cousin’s birthday party in a public park, or whether he can go to a mall, where children may be present. The risk of a wrong decision is a criminal charge.
225. In discussing this case with counsel, the plaintiffs learned of many obligations and restrictions of which they were previously unaware. All the plaintiffs are concerned that they will inadvertently violate SORA 2011’s requirements because they do not understand what they are.
226. Finally, SORA 2011 imposes criminal liability despite the impossibility of compliance. SORA 2011 imposes liability regardless of whether illness, injury, or practical difficulties make compliance impossible.
227. For example, since becoming homeless Mr. Doe #4 has been unable to comply with M.C.L. § 28.725a(7), which requires him to maintain a driver’s license or personal identification card “with the individual’s current address.” The
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Secretary of State will not issue identification without an address, and therefore Mr. Doe #4, who is registered as homeless, cannot comply with the requirement that his license match his registration information.
228. Mr. Doe #4 also has difficulty complying with the reporting requirements because he does not have a vehicle and cannot arrange for transportation to update his information within three days.
229. The plaintiffs fear that despite their best efforts to understand and comply with the law, and despite the absence of any intention to violate the law, they will be held strictly liable for any failure to comply.
230. SORA 2011 imposes penalties of up to 10 years imprisonment for violations of the Act. M.C.L. §§ 28.729(1); 28.734(2); 28.735(2).
J. Consequences Beyond SORA 2011 231. Because the plaintiffs are required to register as sex offenders under SORA 2011, they are also subject to a vast and labyrinthine array of laws and ordinances imposed on registered sex offenders by the federal government, other state or tribal governments, and local municipalities. See Prescott Decl., at 11-12 (Exh. 8); and Attachment A to Decl. (Consequences Triggered by Sex Offender Registration: A National Sample). 232. A compendium of the most significant state laws (which does not include federal, tribal, or local laws, and which disregards many of the more minor
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requirements) contains over 1000 pages of obligations and restraints. Id. at 9. 233. Because registration in one state generally triggers registration in another
state, the fact that the plaintiffs are subject to SORA 2011 means they are also subject to the sex offender laws of other jurisdictions if they travel or move.
234. In addition, because the plaintiffs are required to register as sex offenders under SORA 2011, they are subject to policies by private entities that refuse to provide goods or services to registered sex offenders. But for the fact that the plaintiffs are labeled by the state as registered sex offenders, the goods and services provided by those private entities would generally be available to them.
FACTUAL ALLEGATIONS: SORA 2011 IS NOT RATIONALLY RELATED TO THE GOAL OF
PUBLIC SAFETY 235. The plaintiffs incorporate by reference the declarations of Dr. J.J. Prescott (Exh. 8); Dr. Jill Levenson (Exh. 9); Dr. Janet Fay-Dumaine (Exh. 10); Peter Wagner, Esq. (Exh. 11); and Anne Yantus, Esq. (Exh. 12), all of which are attached. 236. The avowed purpose of Michigan’s sex offender registry is to “prevent[] and protect[] against the commission of future criminal sexual acts by convicted sex offenders.” M.C.L. § 28.721a. 237. The idea that SORA 2011 will promote public safety is based on the assumption that sex offender registration will reduce recidivism by convicted
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offenders and thereby reduce the risk to the public. 238. That assumption is false. 239. In fact, the research shows that public registries are likely to increase,
rather than decrease, recidivism, and are therefore counterproductive to their avowed purpose of public protection.
240. As outlined in more detail in the declaration of James J. Prescott (Exh. 8), large-scale empirical research on the impact of sex offender registries has found that public sex offender registries have likely increased, and almost certainly not reduced, the frequency of sex offenses. (By contrast, the research has also found that private law enforcement registries have reduced recidivism against family members, neighbors, etc., though not against strangers.)
241. Specifically, this research shows that the more people a state subjects to public sex offender registration, the higher the relative frequency of sex offenses in that state. Public registries (based on the offense of conviction) correlate with an increase in frequency of sex offenses against all types of victims (family members, neighbors, acquaintances, and strangers). Prescott Decl., at 3-4 (Exh. 8).
242. Applied to Michigan, this research suggests that SORA 2011 contributes to sex offense rates in Michigan that are 10% higher than they would be without SORA 2011. Prescott Decl., at 3 (Exh. 8).
243. Although it may seem counter-intuitive that public registration increases
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rather than decreases recidivism, these results reflect the fact that sex offender registration and the attendant consequences exacerbate risk factors for recidivism, such as lack of employment and housing, and prevent healthy reintegration into the community. Prescott Decl., at 7-8 (Exh. 8).
244. These results are mirrored by other evidence-based research on the impact of sex offender registration. Most studies reveal no significant reduction in sex crime rates that can be attributed to sex offender laws and policies. Rather, there is a significant body of empirical work that overwhelmingly shows that, at best, public registration makes no difference to recidivism rates, and that it may well be counter-productive. See Levenson Decl., at 3 (Exh. 9); Prescott Decl., at 12 (Exh. 8).
245. The two studies that detected reductions in sex crime recidivism after the passage of registration laws were both in states that have risk-based, rather than offense-based, classification, and that limit public notification to those offenders who have been individually determined to pose the greatest threat to community safety. See Levenson Decl., at 3 (Exh. 9).
246. Moreover, there is no research to support the hypothesis that registrants who live closer to child-oriented settings are more likely to reoffend. Rather, the research shows that where registrants live is not a significant contributing factor to recidivism. See Levenson Decl., at 4 (Exh. 9).
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247. Residency restrictions reduce housing options for registrants, leading to housing instability. Housing instability is consistently correlated with higher criminal recidivism, and may help account for the increases in recidivism triggered by registration. See Prescott Decl., at 7-8 (Exh. 8); Levenson Decl., at 5-6 (Exh. 9). Thus, residency restrictions are likely to increase rather than decrease sexual offending.
248. Similarly, requirements that interfere with employment, social support, and engagement in pro-social activities undermine the avowed public safety goals of sex offender registration laws. Social policies that ostracize and disrupt the stability of sex offenders are counterproductive to increasing public safety. See Levenson Decl., at 7, 10 (Exh. 9).
249. Failure to comply with registration requirements does not predict sexual recidivism. Levenson Decl., at 11-12 (Exh. 9).
250. There is no empirical evidence to support the notion that more frequent registration check-ins lower recidivism, nor is there evidence that reporting additional information (e.g., email addresses, employment information) reduces recidivism. Levenson Decl., at 10 (Exh. 9).
251. In sum, SORA 2011 is not rationally related to the public safety goal it purports to serve.
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FACTUAL ALLEGATIONS: THE REQUIREMENTS OF SORA 2011 BEAR NO REASONABLE RELATIONSHIP TO THE RISK THAT INDIVIDUAL REGISTRANTS POSE TO THE COMMUNITY
252. SORA 2011 is also premised on the assumption that all individuals convicted of sex offenses pose a great risk to public safety, which justifies continuous and lengthy supervision and restrictions.
253. In fact, while some individuals convicted of sex offenses will reoffend, the vast majority of new sex offenses are committed not by registered offenders, but by individuals without prior sex offenses. For example, a study in New York found that 95% of all arrests for sexual offenses were for individuals who did not have a prior sexual offense conviction and who were not on a sex offender registry. See Levenson Decl., at 8 (Exh. 9).
254. Among those with prior sex offenses, recidivism rates vary with the presence of certain risk factors. See Levenson Decl., at 8 (Exh. 9). While some individuals convicted of sex offenses pose a significant risk to public safety, most do not.
255. Most sex offenders do not re-offend sexually. First-time sexual offenders are significantly less likely to re-offend than those with multiple sexual convictions, and offenders over the age of 50 are less likely to re-offend than younger offenders. Moreover, recidivism rates differ significantly depending on the nature of the offense (e.g., rape, incest, child victim, etc.).
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256. Research indicates that the risk for sexual re-offending is reduced by half when a person has spent 5-10 years offense-free in the community. The risk continues to decline the more time the person spends offense-free in the community. Risk for sexual recidivism also declines with age. See Levenson Decl., at 10 (Exh. 9).
257. SORA 2011 is not based on risk. The tier to which an individual is assigned, whether an individual is listed on the public registry, and how long an individual must register, are all based solely on the offense of conviction, not on the individual’s level of risk.
258. Individuals classified as Tier III under SORA 2011 are often at lower risk to reoffend than individuals classified as Tier I or Tier II. The result of this offense-based registration system is that the public’s and law enforcement’s ability to identify sexually dangerous persons is significantly reduced. See Levenson Decl., at 2 (Exh. 9).
259. Because recidivism risk declines significantly with advancing age and with time spent offense-free in the community, requiring registration for 25 years to life is both inefficient and unnecessary. See Levenson Decl. (Exh. 9) at 10.
260. In addition, SORA 2011, by focusing on the danger posed by strangers (who can be identified through the registry), misidentifies the source of risk. In 93% of cases of child sexual abuse, the offender was a family member or
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acquaintance, not a stranger listed on the registry. 261. Public sex offender registration and residency restrictions, which focus on
“stranger danger,” give parents a false sense of security by implying that knowing where sex offenders live or banishing them from the community in fact reduces the risk of sex offenses being committed, when such measures do not have this effect. See Levenson Decl., at 9 (Exh. 9).
262. In sum, the requirements of SORA 2011 bear no rational relationship to the risks that individual registrants pose to the community.
FACTUAL ALLEGATIONS: THE PLAINTIFFS’ RISK LEVELS 263. Actuarial risk assessment instruments – which are used to determine the statistical likelihood that an individual will reoffend based on known diagnostic indicators – are far better at predicting recidivism risk than the fact of a conviction. See Levenson Decl., at 8 (Exh. 9). 264. The most commonly used and well-researched risk instrument is the Static-99. The Static-99 is designed to assist in the prediction of sexual recidivism for male sexual offenders. The Static-99 has demonstrated good predictive accuracy in multiple validation studies and offers a firm scientific basis for assessing the likelihood that an individual convicted of a sex offense will reoffend. Id. 265. The Static-99 is easily scored by anyone trained to do so. Id.
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266. Janet Fay-Dumaine, Psy. D., a licensed psychologist, conducted actuarial risk assessments of plaintiffs John Does #2-4 using the Static-99R (the most recent version of the Static-99).
267. John Doe #1 could not be scored as he did not commit a sex offense. The Static-99 also could not be used for Mary Doe, as it has not been validated for female offenders. Fay-Dumaine Decl., at 1, 4 (Exh. 10).
268. John Does #2-4 all received a Static-99R score of “2”. Offenders from routine correctional samples with a score of “2” have been found to sexually reoffend at a rate of only five percent (or one in 20) over five years. See FayDumaine Decl., at 1 (Exh. 10).
269. Because sexual offending decreases steadily with age, the Static-99R incorporates age as a risk factor. John Does #2-4 are all currently under age 35. At the age of 35, their Static-99R scores will drop to a “1”, and their recidivism risk will drop to 3.8%. As they grow even older, their recidivism risk will continue to decrease. See Fay-Dumaine Decl., at 1, 3 (Exh. 10).
270. Although the Static-99R could not be scored for Mary Doe, research on female sexual offenders has found that they have “an ‘extremely low’ rate of sexual recidivism” (between 1-3%). Fay-Dumaine Decl., at 4 (Exh. 10).
271. Although the plaintiffs are classified as Tier III offenders and required to register for life, actuarial risk assessment indicates that they are in fact extremely
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low risk. Moreover, the nature of their offenses and the length of time that they have successfully lived offense-free in the community also indicate that they are very unlikely to reoffend.
FACTUAL ALLEGATIONS: GEOGRAPHIC EXCLUSION ZONES 272. Under SORA 2011, the plaintiffs are barred from residing, working, or “loitering” within a “student safety zone,” defined as 1000 feet from school property. M.C.L. §§ 28.733-735. 273. The State of Michigan does not make maps available to the public showing where the exclusion zones are located or what their boundaries are. 274. It is impossible for ordinary people to identify the areas that are inside and outside the exclusion zones. The task is difficult even for experts with sophisticated mapping technology. Distances are difficult to estimate or measure and property boundaries are difficult to locate. Moreover, exclusion zones often have irregular shapes, because they are measured from property boundaries and because the zones overlap. Exclusion zones are not shaped like simple circles around a fixed point. Wagner Decl., at 4 (Exh. 11). 275. It is impossible for the plaintiffs to comply with the prohibition on “loitering,” which requires moment-to-moment knowledge of whether or not they are in an exclusion zone. Wagner Decl., at 6 (Exh. 11). 276. The exclusion zones cover vast areas, especially in urban and suburban
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regions. Because exclusion zones are measured as the crow flies, rather than as people actual travel between two points, some exclusion zones cover areas that are much further than 1000 feet from a school, in terms of the travel distance. Wagner Decl., at 6-10 (Exh. 11).
277. Exclusion zones put a significant percentage of cities and towns off-limits. As a result, exclusion zones severely restrict access to employment and housing, and limit registrants’ ability to engage in normal human activity. Wagner Decl., at 10 (Exh. 11).
FACTUAL ALLEGATIONS: CENTRALITY OF REGISTRATION TO PLEA NEGOTIATIONS 278. Because of the severe burdens associated with sex offender registration, the issue of whether a conviction will result in registration is critical for criminal defendants. Yantus Decl., at ¶¶ 5-7 (Exh. 12). 279. The choice whether or not to plead guilty often turns on whether a defendant must register, for how long a defendant must register, and whether registration is public or private. Yantus Decl., at ¶¶ 5-7 (Exh. 12). 280. The plaintiffs elected to waive their constitutional right to trial and pled guilty based on their understanding of the consequences of their pleas. 281. SORA 2011 has fundamentally, and retroactively, altered the consequences of their pleas.
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FACTUAL ALLEGATIONS: UNFUNDED COSTS TO LOCAL LAW ENFORCEMENT 282. SORA 2011 imposes new unfunded obligations on local law enforcement agencies. 283. As set forth above, SORA 2011 mandates that local law enforcement agencies collect, maintain, and report far more, and far more detailed, information about registrants than was true in the past. See Exh. 1. 284. The new requirement for in person reporting of a much broader range of information increases the number of interactions that local law enforcement must have with registrants and the amount of time that local law enforcement must devote to registration and monitoring. Id. 285. SORA 2011 mandates that local law enforcement agencies register and monitor registrants for much longer periods of time. Upon information and belief, under SORA 2011, about 80% of registrants are now classified as Tier III, which means that they must report quarterly for life. 286. SORA 2011 also imposes new obligations with respect to enforcement. If a registrant fails to register or update registration information as required, local law enforcement must within three days: determine if the individual has absconded or is locatable; notify the State Police; revise the information in the registry to reflect that the person has absconded or cannot be found; seek a warrant for the individual’s arrest; and enter information into the national crime information center
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wanted-person file. M.C.L. § 28.728a. 287. Upon information and belief, SORA 2011 increases the costs borne by
local law enforcement agencies in registering and monitoring sex offenders, and in enforcing the act.
288. While to date no published information spells out the increased costs of SORA 2011 to local Michigan law enforcement, a study of Texas municipalities facing similar changes found that registering offenders under the Adam Walsh Act would cost an additional $14 million per year for cities and counties statewide. See Tim Brown, Texas Association of Counties, Costs to Local Governments from Implementing the Adam Walsh Act (Oct. 19, 2010) (Exh. 13).
289. SORA 2011 increases the one-time registration fee paid by each new registrant by $15 (from $35 to $50). M.C.L. § 28.725b(1).
290. SORA 2011 increases the portion of the fee allotted to local courts and local law enforcement by $10 (from $10 to $20). M.C.L. § 28.725b.
291. This increase of $10 per new registrant is the sole source of funding for all of the increased local government activity required by SORA 2011 for the registration and monitoring of both current and future registrants.
292. The Senate Fiscal Impact Statement estimated that, for the entire state, the fee increase would result in an increase of only $20,000 annually, to be divided by local agencies state-wide.
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293. Upon information and belief, the minimal additional revenue provided to local law enforcement under SORA 2011 is far below the actual necessary costs to local law enforcement of implementing SORA 2011.
CLAIMS FOR RELIEF COUNT I: VIOLATION OF THE EX POST FACTO CLAUSE 294. The retroactive application of SORA 2011 violates the Ex Post Facto Clause of the U.S. Constitution, Art. I, § 10, cl. 1, because it makes more burdensome the punishment imposed for offenses committed prior to enactment of SORA 2011, and it applies SORA 2011 retroactively. COUNT II: VIOLATION OF THE DUE PROCESS CLAUSE (Travel) 295. The right to travel is a fundamental right that is protected under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 296. SORA 2011 substantially interferes with the plaintiffs’ ability to travel. 297. SORA 2011 does not provide for any individualized consideration before restricting the plaintiffs’ right to travel. 298. SORA 2011 violates the plaintiffs’ fundamental right to travel because it is not narrowly tailored to serve a compelling state interest. COUNT III: VIOLATION OF THE DUE PROCESS CLAUSE (Work) 299. The right to engage in the common occupations of life is a fundamental right that is protected under the Due Process Clause of the Fourteenth Amendment.
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300. SORA 2011 substantially interferes with the plaintiffs’ ability to engage in the common occupations of life.
301. SORA 2011 creates a wholesale barrier to employment. That barrier is not based on the plaintiffs’ fitness or capacity to work in the jobs from which they have been excluded.
302. SORA 2011 does not provide for any individualized consideration before restricting the plaintiffs’ ability to engage in the common occupations of life.
303. SORA 2011 violates the plaintiffs’ fundamental right to engage in the common occupations of life because it is not narrowly tailored to serve a compelling state interest.
COUNT IV: VIOLATION OF THE DUE PROCESS CLAUSE (Children) 304. The right to direct the education and upbringing of children is a fundamental right that is protected by the Due Process Clause of the Fourteenth Amendment. 305. SORA 2011 substantially interferes with the plaintiffs’ ability to direct the education and upbringing of their children. 306. SORA 2011 does not provide for any individualized consideration before restricting the plaintiffs’ right to direct the education and upbringing of children. 307. SORA 2011 violates the plaintiffs’ fundamental right to direct the education and upbringing of children because it is not narrowly tailored to serve a
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compelling state interest. COUNT V: VIOLATION OF THE FIRST AMENDMENT
308. The First Amendment prohibits abridgement of the freedom of speech. The Fourteenth Amendment incorporates the First Amendment against the states.
309. SORA 2011 requires the plaintiffs to report information about their online accounts and activity to law enforcement, which substantially interferes with access to the Internet as a forum for speech and eliminates the plaintiffs’ opportunities for anonymous on-line speech.
310. SORA 2011’s requirements to report information about on-line accounts and activity is invalid under the First Amendment both on its face and as applied because it is not narrowly tailored to serve a compelling state interest and because it prohibits a substantial amount of protected speech.
COUNT VI: VIOLATION OF THE DUE PROCESS CLAUSE (Retroactivity)
311. The Due Process Clause of the Fourteenth Amendment imposes limits on retroactive legislation that is harsh or oppressive or that violates principles of fundamental fairness.
Claim of John Doe #1 312. John Doe #1 pled guilty to the offense of kidnapping in 1990. There was no sexual element to his crime, and at the time he pled guilty, Michigan had no sex offender registration. Mr. Doe #1 is now subject to lifetime sex offender
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registration. 313. Retroactively imposing SORA 2011 on Mr. Doe #1 violates the Due
Process Clause of the Fourteenth Amendment to the United States Constitution. Claim of John Doe #2
314. John Doe #2 pled guilty in 1997 under the Holmes Youthful Trainee Act based on a promise that, upon completion of probation, his case would be dismissed and his records would be sealed. He successfully completed probation and his case was dismissed. Nevertheless, Mr. Doe #2 is subject to lifetime registration under SORA 2011.
315. Retroactively imposing SORA 2011 on Mr. Doe #2 violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Claims of John Does #3 and #4 and Mary Doe 316. Prior to the enactment of SORA 2011, the plaintiffs were required to register for 25 years if living in Michigan. 317. SORA 2011 has been applied retroactively to extend the plaintiffs’ registration periods from 25 years to life without any individualized showing that such an extension is warranted. 318. Retroactively extending the plaintiffs’ registration periods violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
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COUNT VII: VIOLATION THE DUE PROCESS CLAUSE (Vagueness, Impossibility and Strict Liability)
319. The Due Process Clause of the Fourteenth Amendment prohibits states from enforcing laws that are unconstitutionally vague. As a matter of due process, statutory requirements must be written with sufficient specificity that persons of ordinary intelligence need not guess at their meaning and will not differ as to their application.
320. SORA 2011 contains provisions that are invalid under the vagueness doctrine because those provisions fail to provide a person of ordinary intelligence fair notice of what is required and what is prohibited under the statute, making it impossible for the plaintiffs to conform their conduct to the statutory requirements, and making it likely that the statute will be enforced in different ways in different places or against different people.
321. The Due Process Clause of the Fourteenth Amendment prohibits states from enforcing laws with which it is impossible to comply. SORA 2011 contains provisions with which compliance is impossible.
322. The Due Process Clause also limits the use of strict liability in the criminal law. SORA 2011 contains provisions that impose strict liability in violation of due process.
323. The parts of SORA 2011 that are void for vagueness, or are impossible to comply with, or wrongly impose strict liability include but are not limited to:
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a. the prohibition on working within a student safety zone, M.C.L. § 28.733-734;
b. the prohibition on loitering within a student safety zone, M.C.L. § 28.733-734;
c. the prohibition on residing within a student safety zone, M.C.L. § 28.733 & 735;
d. the requirement to immediately report changes in personal data, M.C.L. § 28.725;
e. the requirement to report educational information, M.C.L. § 28.724a; and f. the requirement to maintain a driver’s license or state personal
identification card with a current address. M.C.L. § 28.725a(7).
COUNT VIII: VIOLATION OF THE HEADLEE AMENDMENT
324. The Headlee Amendment to the Michigan Constitution prohibits the state
legislature from requiring local governments to increase their level of participation
in a state program unless the state fully funds any necessary increased costs. Mich.
Const. Art. 9, § 29.
325. The State Disbursements to Local Units of Government Act, M.C.L. §
21.231 et seq., which implements the Headlee Amendment, requires that the state
legislature “appropriate an amount sufficient to make disbursements to each local
unit of government for the necessary cost of each state requirement.” M.C.L. § 21.
235(1).
326. As Michigan taxpayers, the plaintiffs have standing to bring a Headlee
claim. Mich. Const. Art. 9, § 32.
327. SORA 2011 imposes increased requirements on local law enforcement
agencies for the collection, maintenance, and reporting of data that the State of
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Michigan uses for its sex offender registry. 328. SORA 2011 also imposes increased requirements on local law
enforcement agencies for the enforcement of SORA 2011. 329. Upon information and belief, the increased and unreimbursed costs borne
by local law enforcement agencies under SORA 2011 substantially exceed $300 per local government. See M.C.L. § 21.232(4) (costs below $300 are considered de minimus).
330. These increased requirements are a “new activity or service or an increase in the level of any activity or service beyond that required by existing law,” within the meaning of the Headlee Amendment.
331. The State of Michigan has failed to make or disburse a state appropriation to local governments that is sufficient to cover the necessary increased costs imposed on local governments under SORA 2011.
332. SORA 2011 violates the Michigan Constitution, Art. 9, § 29 and the State Disbursements to Local Units of Government Act because SORA 2011 requires new activities or services, as well as an increase in the level of existing activities or services beyond that required by existing law, without sufficiently funding the necessary increased costs imposed on local governments.
Lack of Legal Remedy 333. The plaintiffs’ harm is ongoing, and cannot be alleviated except by
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injunctive relief.
334. No other remedy is available at law.
Request For Relief
Wherefore, the plaintiffs request that this Court:
a. Issue a judgment, pursuant to 28 U.S.C. §§ 2201-2202, declaring that retroactive application of SORA 2011 violates the prohibition in the United States Constitution against ex post facto laws, and issue a preliminary and permanent injunction restraining the defendants from retroactively enforcing SORA 2011 against the plaintiffs without an individualized determination of dangerousness;
b. Issue a judgment, pursuant to 28 U.S.C. §§ 2201-2202, declaring that SORA 2011 unconstitutionally interferes with the plaintiffs’ fundamental rights to travel, to engage in the common occupations of life, to direct the education and upbringing of their children, and to engage in free speech, and issue a preliminary and permanent injunction restraining the defendants from enforcing against the plaintiffs those provisions of SORA 2011 that interfere with these rights;
c. Issue a judgment, pursuant to 28 U.S.C. §§ 2201-2202, declaring that applying SORA 2011 to John Does #1 and #2 violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and issue a preliminary and permanent injunction restraining the defendants from enforcing SORA 2011 against them;
d. Issue a judgment, pursuant to 28 U.S.C. §§ 2201-2202, declaring that retroactively extending the registration periods of John Does #3 – 4 and Mary Doe violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and issue a preliminary and permanent injunction restraining the defendants from retroactively extending their registration periods;
e. Issue a judgment, pursuant to 28 U.S.C. §§ 2201-2202, declaring that SORA 2011 is void under the Due Process Clause of the Fourteenth Amendment due to vagueness, impossibility, and wrongful imposition of
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strict liability, and issue a preliminary and permanent injunction restraining the defendants from enforcing against the plaintiffs those provisions of SORA 2011 that are unconstitutional; f. Issue a judgment, pursuant to 28 U.S.C. § 2201-2202, declaring that SORA 2011 violates Michigan’s Headlee Amendment, Mich. Const. art. 9, § 29; and issue a preliminary and permanent injunction restraining the defendants from enforcing SORA 2011 until such time as the legislature appropriates funds sufficient to cover the necessary increased costs to local governments;
g. Award the plaintiffs their costs and attorneys’ fees pursuant to 42 U.S.C. § 1988 and Mich. Const. Art. 9, § 32; and
h. Grant such other relief as the Court finds just and proper.
COMPLAINT OF INTERVENOR JOHN DOE #5 Intervening plaintiff John Doe #5, for his complaint, states as follows2: 335. I am a resident of Detroit, Wayne County, MI. The parties have stipulated that I can be added as a named plaintiff in this action. 336. In 1979, when I was 21 years old, I ran in to my sister and a girl from the neighborhood where I grew up, at a local store. 337. The girl and I had known each other for a long time. At that time she was 17 years old. 338. We all went back to my place. At some point the girl and I went to my bedroom and we had sex.
2 A declaration of John Doe #5 attesting to the facts of the intervenor’s complaint is attached as Exhibit 14.
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339. I believe that when she got home her mother asked where she had been, and she said she had been over at my place. I believe her brother called the police.
340. The police came and talked to me. At first they told me that they were not going to prosecute me, but then the girl’s father got involved.
341. The girl’s father did not live with her, but he was a minister or something, and he pushed the case with the police. I was then charged with CSC III.
342. I was offered a plea down to CSC IV with six months in the Wayne County House of Corrections.
343. I rejected the plea because the sex was consensual; I believed that I had not committed any crime.
344. The case went to trial. My sister backed up my account of what happened, but the prosecutor argued, “She’s his sister.”
345. The girl said she had not consented; I think she had to say that to stay in the good graces of her mother, her father, and her brother.
346. I made the mistake of testifying, and no doubt I came across to the jury as arrogant and self-centered and cocky, which is exactly how I was at 21.
347. I was convicted of CSC III; the court sentenced me to 2-15 years in prison, I believe in March of 1980. This was my first conviction of any kind. No one said anything about my having to register under a sex offender law.
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348. I served about 21 months and got out 90 days early, I believe in December 1981.
349. During the 1990s, I committed some property crimes and went to prison twice (I believe for 20 months and 34 months) for those crimes. I also got probation for some property crimes during the 2000s; I believe that in one of those cases I served around 8 months in the Wayne County Jail.
350. To the best of my knowledge, in none of those cases did anyone ever tell me that I would have to register under a sex offender law.
351. In November 2011 I was arrested for collecting scrap. I pled guilty to larceny of more than $1,000 but less than $20,000 (MCL 750.3563A).
352. I believe the sentence was 18 months, with the first nine months to be served in the county jail.
353. At my sentencing, I believe the circuit court judge told me that I would not have to register under SORA. (I am trying to get a transcript of that hearing.)
354. I only served five months and then got out on probation. 355. Part of the probation included a residential alcohol program. Because I was in the residential program I could not report in person to my parole agent, who wrote me up for failing to report. I had to go back to court in the summer of 2012. 356. By then the probation department was saying that I was required to register under SORA. The judge agreed and gave me until November 2012 to register.
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357. I had an MDOC policy directive that made it sound like certain procedures should have been followed, which never occurred.
358. When I failed to register by November 2012, I got charged with what I believe was a probation violation. In January 2013 a visiting judge sentenced me to 90 days in jail.
359. I decided it wasn’t worth the fight, so as soon as I got out I registered, and I have tried to keep my registration up to date, and to comply with the registration law, ever since.
360. Once I had to register, I was told that I couldn’t stay at the place where I was living because it was across the street from a school.
361. I don’t understand why I can’t live near a school or park when I have never had any sexual interest in children and my 33-year-old CSC III conviction had nothing to do with children.
362. My sole source of income is disability. I get a 30% Veterans Administration disability benefit, and I get SSI, for a total of about $710 a month, plus Medicaid.
363. Moving is always a burden for me because I almost never have savings to pay a deposit in addition to the rent, which limits the options of where I can live.
364. I was told that I had to register for life because of the “severity of the offense” that I was convicted of 33 years ago.
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365. I have a stable life, with a girlfriend, family, friends, and help from Veterans’ Services, Jewish Vocational Services, etc. I am currently 56 years old.
366. I don’t understand how I can be required to register as a sex offender for life for something that I did 33 years ago. There was no registration law then, and when I was sentenced in 2011 for larceny, I believe I was told by the court that I would not have to register.
367. I believe that but for the 2011 crime – which had nothing to do with sex – I would not have to register at all.
368. I don’t understand how I became sexually dangerous after 30+ years of clear conduct (I mean no sex offenses) just because I took some scrap metal that I should not have taken.
369. I wish to be added to the current lawsuit, which the lawyers tell me challenges the Sex Offender Registration Act.
370. Because of the registration law, there are places that I cannot live or work, and places that I cannot go.
371. I have never read the law and don’t really know what I can do and what I can’t do, or when or what I’m supposed to report.
372. I feel like at any time I can be arrested for a violation, because I am pretty sure there is always something I did or didn’t do (that I don’t know about) that would be a violation.
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373. I have no idea what the boundaries are of schools or parks where there are kids, or how close I can get to them without violating the law, and I don’t know how I am supposed to find out.
374. Over the years I have occasionally run in to the neighbor girl I had sex with that one time back in 1979.
375. She always apologizes for the trouble she caused me then, and tells me she wishes she had stood up to her family and taken responsibility for what she did.
376. I tell her not to worry; it wasn’t her fault, and it was my attitude that got me convicted by the jury.
(Claim and Relief for Intervening Plaintiff) 377. Intervening plaintiff John Doe #5 adopts the claims raised by the plaintiffs in their earlier complaint, subject to the Court’s order regarding all of those claims, and also adopts the requests for relief.
SUPPLEMENTAL COMPLAINT BASED ON AMENDMENTS TO MICHIGAN’S SEX OFFENDER REGISTRATION ACT
378. On November 5, 2013, Michigan enacted Public Act 149 of 2013, (Exh. 15), which amended M.C.L. § 28.725a, effective April 1, 2014.3
3 Public Act 149 of 2013 also altered registrants’ reporting requirements, discussed in ¶¶ 118, 189, supra. Tier III registrants continue to report quarterly, but must do so according to a schedule set by their birth month. M.C.L. § 28.725a(3), as amended. Plaintiffs do not challenge the change in the timing for reporting.
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379. M.C.L. § 28.725a(6) previously provided that registrants pay a one-time $50 registration fee. M.C.L. § 28.725a(6), as amended, provides that registrants must pay both a $50 registration fee upon initial registration, and a $50 annual fee following the year of initial registration. The total fees cannot exceed $550.
380. An indigent registrant may seek a temporary waiver of the fee by proving his/her indigency to the satisfaction of the local law enforcement agency, sheriff’s department, or MSP post where the individual reports. A registrant who is unable to pay must seek a new waiver every 90 days. M.C.L. § 28.725b(3).
381. Willful refusal or failure to pay the fees is a misdemeanor, punishable by imprisonment for not more than 90 days. M.C.L. § 28.729(4).
COUNT IX: VIOLATION OF THE EX POST FACTO CLAUSE: SORA 2013 AND PUBLIC ACT 149 OF 2013
382. SORA 2011, in combination with Public Act 149 of 2013 – collectively “SORA 2013” – imposes such extensive and punitive restrictions on the plaintiffs that it violates the Ex Post Facto Clause of the U.S. Constitution, Art. I, § 10, cl. 1, because it makes more burdensome the punishment imposed for offenses committed prior to enactment of these laws, and applies retroactively.
383. The retroactive application of the fee requirements of Public Act 149 of 2013 violates the Ex Post Facto Clause of the U.S. Constitution, Art. I, § 10, cl. 1, because it makes more burdensome the punishment imposed for offenses
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committed prior to enactment of Public Act 149 of 2013, and it applies Public Act 149 of 2013 retroactively.
Request For Relief Wherefore, the plaintiffs request that this Court: i. Issue a judgment, pursuant to 28 U.S.C. §§ 2201-2202, declaring that
retroactive application of SORA 2013 violates the prohibition in the United States Constitution against ex post facto laws, and issue a preliminary and permanent injunction restraining the defendants from retroactively enforcing SORA 2013 against the plaintiffs without an individualized determination of dangerousness; j. Issue a judgment, pursuant to 28 U.S.C. §§ 2201-2202, declaring that retroactive application of the fee provisions Public Act 149 of 2013 violates the prohibition in the United States Constitution against ex post facto laws, and issue a preliminary and permanent injunction restraining the defendants from retroactively enforcing the fee provisions against the plaintiffs.
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Respectfully submitted,

s/ Miriam Aukerman American Civil Liberties Union
Fund of Michigan Attorney for Plaintiffs 1514 Wealthy SE Grand Rapids, MI 49506 (616) 301-0930 maukerman@aclumich.org (P63165)
s/ Michael Steinberg s/ Kary Moss American Civil Liberties Union
Fund of Michigan Attorneys for Plaintiffs 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org (P43085) kmoss@aclumich.org (P49759)

s/ Paul D. Reingold Michigan Clinical Law Program Attorneys for Plaintiffs 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109 (734) 763-4319 pdr@umich.edu (P27594)
s/ William Swor Attorney for Plaintiffs 645 Griswold Street, Ste. 3060 Detroit, MI 48226 (313) 967-0200 wwswor@wwnet.net (P21215)
Dated: December 2, 2013

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Exhibit 1 2 3 4 5 6 7 8 9 10
11 12
13
14 15

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
INDEX OF EXHIBITS Description Obligations, Disabilities, and Restraints Imposed by SORA 2011 Declaration of John Doe #1 Declaration of John Doe #2 Declaration of John Doe #3 Amended Declaration of John Doe #4 Declaration of Mary Doe Amended Declaration of I.G. Declaration of Dr. James J. Prescott, J.D., Ph.D., on SORA Effects Declaration of Dr. Jill Levenson, Ph.D., on SORA Studies and Effects Declaration of Dr. Janet Fay-Dumaine, Psy. D., on the Plaintiffs’ Risk Level Declaration of Peter Wagner, J.D., on the Impact of Exclusion Zones Declaration of Anne Yantus, J.D., on the Impact of Registration on Plea Bargaining Texas Association of Counties Report on Costs to Local Governments of Implementing the Adam Walsh Act John Doe #5 Verification of Intervenor’s Complaint Michigan Public Act 149 of 2013

74

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOES 1-4 and MARY DOE,

Plaintiffs,

v.

Case No. 12-11194

RICHARD SNYDER and COL. KRISTE ETUE,

Defendants. /

OPINION AND ORDER DENYING DEFENDANTS’ MOTION IN LIMINE

On March 16, 2012, Plaintiffs John Does I–IV and Mary Doe initiated the above-

captioned lawsuit challenging the constitutionality of the Michigan Sex Offender Registry

Act (“SORA”), as amended in 2011. Governor Richard Snyder and Colonel Kriste Etue

of the Michigan Department of State Police are named in their official capacity as

Defendants. On June 6, 2014, Defendants filed a motion in limine. Defendants seek to

exclude the proposed testimony of: (1) Plaintiffs’ mapping expert Peter Wagner under

Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579

(1993); and (2) American Civil Liberties Union (ACLU) volunteers Timothy Poxson and

Joseph Granzotto regarding their telephonic conversations with various law

enforcement officers throughout Michigan under Federal Rules of Evidence 802 and

803. The matter is fully briefed, and no hearing is needed. See E.D. Mich. LR 7.1(f)(2).

For the following reasons, the court will deny Defendants’ motion in limine.

I. PROPOSED TESTIMONY OF PLAINTIFFS’ MAPPING EXPERT Plaintiffs seek to offer mapping expert Peter Wagner’s testimony regarding their claim that SORA’s school exclusion zones are impressibly vague. According to Plaintiffs, Wagner’s testimony, two reports, and maps, “show that it [is] impossible for anyone to determine the complete boundaries of Michigan’s school exclusion zones because of the severe limits on the available data.” (Dkt. # 88, Pg. ID 3645 (citations omitted).) Defendants argue that Wagner’s testimony is not based upon reliable scientific methods or processes and is thus inadmissable under Federal Rule of Evidence 702 and Daubert. Federal Rule of Evidence 702 provides that: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Fed. R. Evid. 702. In Daubert, the Supreme Court held that, when faced with a proffer of expert scientific testimony, the trial judge is assigned “the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” 509 U.S. 579, 580 (1993). This ruling was later interpreted by the Court to apply to all expert testimony, not only scientific testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).
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The Daubert Court provided a non-exclusive list of factors that courts should consider when analyzing reliability: “(1) whether a theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review or publication; (3) the known or potential rate of error; and (4) general acceptance.” First Tenn. Bank Nat’l Ass’n v. Barreto, 268 F.3d 319, 334 (6th Cir. 2001) (citing Daubert, 509 U.S. at 593-94) (quotation marks and alterations omitted). However, the test for determining reliability is “flexible,” and the court is given “the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho, 526 U.S. at 141-42 (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997)).
The trial court has wide discretion when determining whether to admit or exclude expert testimony and in a bench trial, “[t]his discretion is particularly broad.” United States v. Demjanjuk, 367 F.3d 623, 633 (6th Cir. 2004). Moreover, in a bench trial “there is less danger that a trial court will be unduly impressed by the expert’s testimony or opinion.” F.T.C. v. BurnLounge, Inc., No. 12-55926, 2014 WL 2445812, at *8 (9th Cir. June 2, 2014) (citations omitted); see also Tussey v. ABB, Inc., 746 F.3d 327, 337 (8th Cir. 2014) (citations omitted) (“[I]n a bench trial, we not only give the trial court wide latitude in determining whether an expert’s testimony is reliable, we also relax Daubert’s application.”); United States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005) (“There is less of a need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself.”); Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir.2000) (holding that “[m]ost of the safeguards provided for in Daubert are not as essential in a case such as this where a district judge sits as the trier of fact in place of a jury.”). Of course, the
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court is still required “to rely only on admissible and reliable expert testimony” but it has “substantial flexibility in admitting proffered expert testimony at the front end, and then deciding for [itself] during the course of trial whether the evidence meets the requirements of Kumho Tire Co. and Daubert and deserves to be credited.” Gonzales v. Nat’l Bd. of Med. Exam’s, 225 F.3d 620, 635 (6th Cir.2000) (Gilman, J., dissenting).
In light of this broad discretion, the court declines to exclude Wagner’s testimony at this time. The court may ultimately disregard some, or all, of his testimony but the appropriate time to make that determination is after the court has identified which specific parts of the testimony the court might consider for resolving particular issues of fact.
II. PROPOSED TESTIMONY OF ACLU VOLUNTEERS Plaintiffs argue that several of SORA’s requirements are vague as applied and that “getting their basic questions answered [regarding the Act’s requirements] is difficult if not impossible.” (Dkt. # 88, Pg. ID 3654.) ACLU volunteers Timothy Poxson and Joseph Granzotto contacted law enforcement agencies and prosecutors to survey how they interpret and apply SORA, and Plaintiffs seek to offer as testimony the answers collected. Defendants object that these answers are hearsay and must be excluded under Federal Rules of Evidence 802 and 803. Hearsay is a statement that “(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c). Generally, unless an exception applies, hearsay is not admissible. Fed. R. Evid. 802, 803. Defendant argues that the statements Plaintiffs proffer “are obviously intended to be offered for the truth of the
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matters asserted—that is, how the officers interpret or enforce SORA.” (Dkt. # 87, Pg.
ID 3569–70.) Plaintiffs counter that the statements are not being offered to prove the
truth of the matter asserted but instead to show what law enforcement believed to be
true. As Plaintiffs point out, “the answers most helpful to [them]—the ones where the
officer or assistant prosecutors on the phone gave an answer that was patently false
under SORA—are helpful not for the truth of the statements but for their falsity.” (Dkt. #
88, Pg. ID 3656.) The court agrees and will admit the survey answers that Poxson and
Gronzotto obtained.
The court notes that admitting the informal survey answers is consistent with
longstanding practice. In the seminal case on the subject, United States v. 88 Cases,
More of Less, Etc, Containing Bireley’s Orange Beverage, 187 F.2d 967 (3d Cir. 1951),
the third circuit considered whether a certain beverage was “adulterated,” i.e. whether it
was made to appear better than it was. The government introduced survey answers of
3,539 individuals that were asked what they thought the beverage contained. With
regard to whether or not the survey results constituted hearsay, the court explained:
Many objections were made to the manner in which the surveys were taken. The principal contention, however, was that the surveys were hearsay and therefore inadmissible. The hearsay objection is unfounded. For the statements of the persons interviewed were not offered for the truthfulness of their assertions as to the composition of the beverage. They were not offered to prove that Bireley’s Orange Beverage is or is not orange juice. They were offered solely to show as a fact the reaction of ordinary householders and others of the public generally when shown a bottle of Bireley’s Orange Beverage.
Id. at 974. Ever since 88 Cases, More of Less, Etc, Containing Bireley’s Orange
Beverage, federal courts have often admitted the results of surveys despite their
seemingly hearsay character. Gen. Motors Corp. v. Cadillac Marine & Boat Co., 226 F.
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Supp. 716, 734 (W.D. Mich. 1964); see also Cosmetic Dermatology & Vein Centers of Downriver, P.C. v. New Faces Skin Care Centers, Ltd., 91 F. Supp. 2d 1045, 1052 n.2 (E.D. Mich. 2000). Further, objections pertaining to the technical aspects of a survey affect only the weight, rather than the admissibility of the evidence. Id.
The court declines to exclude the answers of law enforcement that Poxson and Granzotto collected.
III. CONCLUSION For the foregoing reasons, IT IS ORDERED that Defendants’ motion in limine (Dkt. #87) is DENIED.

Dated: March 31, 2015

s/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, March 31, 2015, by electronic and/or ordinary mail.
s/M. Beauchemin Deputy Clerk (313) 234-5525

6

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOES #1-5 and MARY DOE,

Plaintiffs,

v.

Case No. 12-11194

RICHARD SNYDER and COL. KRISTE ETUE,

Defendants. /

OPINION AND ORDER RESOLVING MOTIONS FOR JUDGMENT

Plaintiffs John Does #1-5 and Mary Doe bring the instant action against Governor

Richard Snyder and Director of the Michigan State Police Colonel Kriste Etue, named in

their official capacities, challenging Michigan’s Sex Offenders Registration Act

(“SORA”), as amended in 2011 and 2013. Both parties have filed Rule 52 motions for

judgment on the stipulated facts and records submitted by the parties. (See Dkt. ## 90-

95). Plaintiffs seek a declaratory judgment and permanent injunction, and ask the court

to grant judgment in their favor on Counts IV, V, VI, VII, and IX of their First Amended

Complaint. (Dkt. # 96, 5669-70.) Defendants move the court to find Plaintiffs’

challenges without merit and grant judgment in their favor. (Dkt. # 97, Pg. ID 5721.)

The parties have willingly waived their right to a full trial in their Rule 52 motions and

have stipulated that the court may enter judgment based on the record submitted by the

parties. For the reasons set forth below, Plaintiffs’ motion will be granted in part and

denied in part and Defendants’ motion will be granted in part and denied in part.

I. BACKGROUND A. Statutory History Michigan enacted SORA in 1994. 1994 Mich. Pub. Acts 295. The 1994 Act established a confidential database containing information about sex offenders that was available only to law enforcement. 94 Mich. Pub. Acts 295, § 10. SORA has been amended numerous times. See 1996 Mich. Pub. Acts 494; 1999 Mich. Pub. Acts 85; 2002 Mich. Pub. Acts 542; 2004 Mich. Pub. Acts 238, 239, 240; 2005 Mich. Pub. Acts 121, 127, 132; 2006 Mich. Pub. Acts 46; 2011 Mich. Pub. Acts 17, 18; 2013 Mich. Pub. Acts 149. As of April 1997, SORA requires law enforcement agencies to make certain registration information available for public inspection, 1996 Mich. Pub. Acts 494, § 10(2), and following the 1999 amendments to SORA, registry information became available through the Internet. See 1999 Mich. Pub. Acts 85, §§ 8(2), 10(2), and 10(3). The amendments between 2002 and 2006, inter alia, increased reporting requirements for registrants; introduced a one-time registration fee; removed the registration requirement for certain individuals assigned to youthful trainee status; prohibited registrants from working, residing, or loitering within 1,000 feet of a school; and created a program whereby members of the public could be notified electronically when a sex offender moved into a particular zip code. See generally 2002 Mich. Pub. Acts 542; 2004 Mich. Pub. Acts 238, 239, 240; 2005 Mich. Pub. Acts 121, 127, 132; 2006 Mich. Pub. Acts 46. The 2011 amendments significantly altered SORA to comply with the federal Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16901 et seq. In its current form, SORA categorizes registrants into three tiers which determine the length
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of time that individuals must register and the frequency with which they must report. Mich. Comp. Laws §§ 28.722(r)-(w); 28.725(10)-(13). Tier classifications are based solely on a registrant’s offense and do not factor in an individualized determination of risk. Tier I offenders must register and comply with SORA obligations for fifteen years; Tier II offenders must register and comply with SORA obligations for twenty-five years; and Tier III offenders must register and comply with SORA for life. Mich. Comp. Laws §§ 28.725(10)-(13). The most recent amendments became effective while this case was pending and now require registrants to pay a pay a $50 annual registration fee. 2013 Mich. Pub. Acts 149.
B. Plaintiffs All six Plaintiffs are Michigan residents who are Tier III offenders and thus required by law to register as sex offenders and comply with SORA for life. (Dkt. # 90, Pg. ID 3729.) Following are brief descriptions of Plaintiffs and their offenses. In 1990, after losing his job at McDonald’s, Doe #1 attempted to rob his former employer. (Id. at 3737.) During the robbery, Doe #1 forced the McDonald’s manager and her fourteen-year-old son into the restaurant; when the manager did not open up the safe, Doe #1 struck the manager and kicked her son. (Id.) The manager and her son were able to escape. (Id.) Doe #1 was charged with eleven felony counts. He pleaded no contest to kidnapping (for holding the fourteen-year-old child against his will) and pleaded guilty to the other charges, including armed robbery. (Id.) In 1991, Doe #1 was sentenced to twenty-two to forty years in prison. (Id. at 3738.) He was paroled in November 2009 and completed his parole in November 2011. (Id. at 3739.) Although Doe #1’s criminal offense lacked an overtly sexual component, under the 2011
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amendments to SORA, he is classified as a Tier III offender and is required to comply with SORA for life because he was convicted of kidnapping a minor. (Id.) He has two adult children and one toddler, and he co-parents his fiancée’s teenage daughter. (Id.)
Doe #2 pleaded guilty under the Holmes Youthful Trainee Act (“HYTA”), Mich. Comp. Laws § 750.520d(1)(a), to criminal sexual conduct III after having a sexual relationship with his fourteen-year-old “girlfriend” in 1996 when he was eighteen years old. (Id. at 3741.) His plea was based on the prosecutor’s promise that his records would be sealed. (Id. at 3743.) Under the HYTA, Doe #2 was assigned the status of “youthful trainee” and sentenced to two years probation. (Id. at 3742.) After completing his probation, his case was dismissed without conviction being entered pursuant to Mich. Comp. Laws § 762.14(1). Designation as a “youthful trainee” is included in the definition of “convicted” under SORA, Mich. Comp. Laws § 28.722(b). Doe #2 is classified as a Tier III offender and must therefore comply with SORA for life. (Id. at 4745.) Doe #2 currently has a teenage daughter. The daughter’s mother has full custody, and Doe #2 has weekend visitation rights. (Id. at 3747.)
In 1998, at the age of nineteen, Doe #3 had a sexual relationship with a fourteen year old. (Id. at 3748.) Doe #3 pleaded guilty to attempted criminal sexual conduct and was sentenced to four years of probation under the HYTA. (Id. at 3750.) During his last year on probation, Doe #3 failed to timely register under SORA. (Id. at 3751.) His HYTA status was revoked, and a conviction was entered. (Id.) Doe #3 has a nine-yearold son, a six-year-old son, and an infant son. (Id.) He was originally required to
4

register for a period of twenty-five years on a non-public registry, but was reclassified as a Tier III offender in 2011. (Id. at 3750, 3752.)
Doe #4 pleaded guilty to attempted criminal sexual conduct III in 2006 after having a sexual relationship with a female under the age of sixteen, who he met in a nightclub restricted to those aged eighteen years and older. (Id. at 3752-53.) He was twenty three years old at the time. (Id. at 2752.) Doe #4 was sentenced to five years probation, which he completed. (Id. at 3753.) He is currently involved in a romantic relationship with his victim, who is now over eighteen years old. They have a sevenyear-old daughter and an infant child, and Doe #4 has two other children as well. (Id. at 3754.) In 2011, Doe #4 was classified as a Tier III offender, extending his period of registration from twenty-five years to life. (Id.)
Doe #5 was added to this action by a stipulated order entered on August 27, 2013. (Dkt. # 34.) In 1980, he was convicted of criminal sexual conduct III and sentenced to two to fifteen years of imprisonment. (Dkt. # 90, Pg. ID 3757.) At the time of the conduct, Doe #5 was twenty one years old and the victim was seventeen years old. (Id.) The victim testifed at trial that the sexual conduct was nonconsenual, and Doe #5 and his sister testifed that it was consensual. (Id.) Doe #5 served approximately twenty-one months of his sentence. (Id.) He was not required to register as a sex offender until 2011 after he pleaded guilty to larceny pursuant to SORA’s “recapture” provisions, added by the 2011 amendments, which require registration for eligible recidivists who are convicted of any additional felony after July 2011. See Mich. Comp. Laws § 28.724(5). (Dkt. # 90, Pg. ID 375.) Doe #5 did not timely register and
5

was therefore cited for a probation violation and jailed for ninety days. (Id. at 3759.) He has children and grandchildren. (Id. at 3761)
Ms. Doe was convicted in Ohio of one count of unlawful sexual conduct with a minor in 2003 for having a sexual relationship with a fifteen-year-old male when she was twenty-nine years old. (Id. at 3761-62.) She was sentenced to three years in prison, but was granted judicial release after serving less than eight months of her sentence. (Id. at 3763-65.) Ms. Doe was assigned to the lowest risk level of Ohio’s sex offender registry, which required address verification once a year for ten years. (Id. at 3763-64.) She moved to Michigan in 2004 after her judicial release. She was initially required to register quarterly for twenty-five years, but was reclassified as a Tier III offender in 2011. (Id. at 3765-66.) Ms. Doe has a teenage daughter, step-children, and three grandchildren under the age of ten, and she is expecting another grandchild. (Id.)
C. The Constitutional Challenges Plaintiffs claim that the retroactive nature of SORA, its extensive reporting requirements and prohibitions, and its broad application violate their constitutional rights. Their First Amended Complaint seeks declaratory and injunctive relief enjoining Defendants from enforcing certain provisions of SORA and barring the retroactive application of the 2011 and 2013 amendments to Plaintiffs. (Dkt. # 46, Pg. ID 903-04, 911.) The complaint alleges nine counts: (1) violation of the Ex Post Facto Clause by the retroactive application of the 2011 amendments (Count I); (2) violation of Plaintiffs’ fundamental rights to travel protected by the Due Process Clause (Count II); (3) violation of Plaintiffs’ fundamental right to engage in common occupations of life protected under the Due Process Clause (Count III); (4) violation of Plaintiffs’ right to
6

direct the education and upbringing of their children under the Due Process Clause (Count IV); (5) violation of Plaintiffs’ right to free speech as protected by the First Amendment incorporated through the Fourteenth Amendment (Count V); (6) violation of the Due Process Clause because the Act is retroactive and “harsh or oppressive or [] violates principles of fundamental fairness” (Count VI); (7) violation of the Due Process Clause because certain provisions are vague, impossible to comply with, or wrongly impose strict liability (Count VII); (8) violation of the Headlee Amendment to the Michigan Constitution which prohibits the state legislature from requiring local governments to increase their level of participation in a state program unless the increase is fully funded by the state (Count VIII); and (9) violation of the Ex Post Facto Clause by the retroactive application of the 2013 amendments (Count IX). (Dkt. # 46, Pg. ID 896-902, 910-11.)
Defendants filed a motion to dismiss Plaintiffs’ original complaint. The court granted in part and denied in part the motion, dismissing with prejudice Counts I, II, and III, dismissing with prejudice VI inasmuch as it applies to the retroactive application of SORA to Does ##1 and 2, and dismissing without prejudice Count VIII. The motion was denied with respect to Counts IV, V, and VII. It was denied with respect to Count VI inasmuch as it applies to the retroactive extension the lifetime registration requirement to Does ##3 and 4 and Ms. Doe. (Dkt. # 27, Pg. ID 703-04 (published at Does v. Snyder, 932 F. Supp. 2d 803, 824 (E.D. Mich. 2013)). Count IX was added to the Amended Complaint after the court entered its order disposing of Defendants’ motion to dismiss.
II. STANDARD 7

Both parties have moved for a summary bench trial on the records submitted by the parties, in the form of a joint statement of facts and accompanying exhibits (Dkt. ## 90-95). “[A] district court may decide a case by summary bench trial upon stipulation of the parties as long as the parties have willingly foregone their right to a full trial.” AcuffRose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 142-43 (2d Cir. 1998); see May v. Evansville-Vanderburgh Sch. Corp., 787 F.2d 1105, 1115-16 (7th Cir. 1986); Nielsen v. W. Elec. Co., 603 F.2d 741, 743 (8th Cir. 1979); Starksy v. Williams, 512 F.2d 109, 11213 (9th Cir. 1975). Here, Plaintiffs and Defendants willingly waived their right to a full trial in their motion papers and have requested that the court enter judgment based on the record before it. (Dkt. ## 96, 97.) When reviewing Rule 52 motions, “the court does not view the evidence in the light most favorable to the nonmoving party, as it would in passing on a Rule 56 motion for summary judgment or a Rule 50(a) motion for judgment as a matter of law; instead, it exercises its role as a factfinder.” United States v. $242,484.00, 389 F.3d 1149, 1172 (11th Cir. 2004).
III. DISCUSSION A. Count VII: Vagueness, Impossibility, and Strict Scrutiny In Count VII, Plaintiffs claim SORA violates the Due Process Clause of the Fourteenth Amendment because provisions of SORA are improperly vague, impossible to comply with, and/or wrongly impose strict liability. In particular, Plaintiffs challenge (1) the prohibition on working within a student safety zone, Mich. Comp. Laws §§ 28.733-734; (2) the prohibition on loitering within a student safety zone, Mich. Comp. Laws §§ 28.733-734; (3) the prohibition on residing within a student safety zone, Mich. Comp. Laws §§ 28.733, 28.735; (4) the requirement to immediately report changes in
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personal data, Mich. Comp. Laws § 28.725; (5) the requirement to report educational information, Mich. Comp. Laws § 28.724a; and (6) the requirement to maintain a driver’s license or state personal identification card with a current address, Mich. Comp. Laws § 28.725a(7). (Dkt. # 46, Pg. ID 900-01.)
1. Void for Vagueness “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The Supreme Court’s vagueness doctrine has two primary goals: (1) “to ensure fair notice to the citizenry” and (2) “to provide standards for enforcement by the police, judges, and juries.” Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1104 (6th Cir. 1995). In light of these goals, courts have developed a two-part test to determine if a statute is unconstitutionally vague. First, the court must determine whether the law gives a person “of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned, 408 U.S. at 108. In reviewing a vagueness challenge, the court considers whether “ordinary people, exercising ordinary common sense, can understand [a statutory prohibition] and avoid conduct which is prohibited, without encouragement of arbitrary and discriminatory enforcement. United States v. Salisbury, 983 F.2d 1369, 1378 (6th Cir. 1993). Second, the court must evaluate whether the statute provides sufficiently “explicit standards for those who apply them” or whether, due to a statute’s vagueness, it “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis.” Grayned, 408 U.S. at 108-09. “The standards of enforcement must be precise enough to avoid ‘involving so many factors of varying effect that neither the person to
9

decide in advance nor the jury after the fact can safely and certainly judge the result.’” Columbia Natural Res., 58 F.3d at 1105 (quoting Cline v. Frink Dairy Co., 274 U.S. 445, 465 (1927)).
“The degree of vagueness that the Constitution tolerates . . . depends in part on the nature of the enactment.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982). “The [Supreme] Court has expressed greater tolerance of enactments with civil rather than criminal penalties . . . , recognized that a scienter requirement may mitigate a law’s vagueness . . . , [and stated that] perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights.” Id. at 498-99. The challenged provisions of SORA impose criminal sanction for non-compliance, Mich. Comp. Laws §§ 28.729, 734(2), 735(2), make Plaintiffs strictly liable for failure to comply with certain requirements and prohibitions, Mich. Comp. Laws §§ 28.725a, 729(2), 734735, and implicate Plaintiffs’ First Amendment right to free speech and their fundamental right to participate in the education and upbringing of their children, see infra Sections III.B and III.C. Accordingly, the court’s standard for vagueness will be more exacting.
On the other hand, the rule of lenity reduces the risk of unfair notice and unclear enforcement standards. “[A]s a sort of ‘junior version of the vagueness doctrine,’ the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.” United States v. Lanier, 520 U.S. 259, 266 (1997). Where possibly ambiguous provisions of SORA are made clear when construed in light of the rule of
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lenity, the vagueness doctrine would not void those provisions. Therefore, the court applies the two-part test for vagueness with due consideration to SORA’s enhanced need for definiteness and SORA’s reduced risk of vagueness.
It is unclear from Plaintiffs’ complaint whether their vagueness claim was intended as a facial or as applied challenge. However, “it is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” United States v. Krumrei, 258 F.3d 535, 537 (6th Cir. 2002) (quoting United States v. Powell, 423 U.S. 87, 92 (1975)); see also Chapman v. United States, 500 U.S. 453, 467 (1991) (“First Amendment freedoms are not infringed by [the statute at issue], so the vagueness claim must be evaluated as the statute is applied to the facts of this case.”); United States v. Kernell, 667 F.3d 746, 750 (6th Cir. 2012) (“For challenges to the statute that do not implicate First Amendment concerns, the defendant bears the burden of establishing that the statute is vague as applied to his particular case, not merely that the statute could be construed as vague in some hypothetical situation.” (internal quotation marks and citation omitted)). But see City of Chicago v. Morales, 527 U.S. 41, 55 (1999) (plurality) (finding that a facial vagueness challenge was appropriate against “a criminal law that contains no mens rea requirement and infringes on constitutionally protected rights”) (citation omitted); Belle Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553, 557 (6th Cir. 1999) (“[E]ven in cases not involving First Amendment rights, we have recognized that courts may engage in a facial analysis where the enactment imposes criminal sanctions.”). Plaintiffs’ void for vagueness challenges only invoke the First Amendment with regard to the Internet use reporting requirements. (See Dkt. # 46, Pg.
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ID 900-01; Dkt. # 96, Pg. ID 5678-90; Dkt. # 99, Pg. ID 5816-23). With regard to all of the other vagueness challenges, “[Plaintiffs] bear[] the burden of establishing that the statute is vague as applied to this particular case, not merely that the statute could be construed as vague in some hypothetical situation.” Krumrei, 258 F.3d at 537 (citing United States v. Avant, 907 F.2d 623, 625 (6th Cir. 1990)). Nonetheless:
When contesting the constitutionality of a criminal statute, it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights. When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (internal quotation marks and citations omitted). Thus, to the extent that Plaintiffs have curtailed their conduct, because it is unclear whether such conduct violates SORA, the court finds a constitutional vagueness challenge proper.
i. Geographic Exclusion Zones Plaintiffs first challenge SORA’s geographic exclusion zones as void for vagueness. SORA makes it a crime for a registrant to work, “loiter,” or reside “within a “student safety zone.” Mich. Comp. Laws §§ 28.734(1)(a)-(b), 28.735(1). SORA defines “school safety zone” as “the area that lies 1,000 feet or less from school property.” Mich. Comp. Laws § 28.733(f). SORA defines “school property” to mean: [A] building, facility, structure, or real property owned, leased, or otherwise controlled by a school, other than a building, facility, structure, or real
12

property that is no longer in use on a permanent or continuous basis, to which either of the following applies: (I) [i]t is used to impart education instruction[, or] (ii) [i]t is for use by students not more than 19 years of age for sports or other recreational activities. Mich. Comp. Laws § 28.733(e). Plaintiffs contend that the term “school safety zone” is unconstitutionally vague because SORA provides insufficient guidance for how the 1,000 feet zones should be measured. (Dkt. # 96, Pg. ID 5681-86.) Plaintiffs note that the zones are not physically marked, and registrants are not provided with maps demarking the boundaries. Without demarcation or maps, the typical registrants are unable to identify the zones because they lack the software and data to map the zones, and Michigan has not provided a list of school properties or parcel data to registrants or law enforcement. (Dkt. # 96, Pg. ID 5681-82.) Additionally, Plaintiffs argue that the term is vague because there is no guidance as to whether the 1,000 feet distance should be measured “point to point” or “property-line to property line” nor whether it should be measured “as the crow flies or as people actually travel.” (Dkt. # 96, Pg. ID 5681-82.) “Because plaintiffs cannot know where the zones are, they must ‘over-police’ themselves, erring on the side of caution.” (Id. at 5684.) For example, Doe #4's partner testified that Doe #4 does not live with her and their two children because their house is down the street from a school, and she was not sure if the school was within 1,000 feet of her home. (Dkt. # 90, Pg. ID 3863.) Likewise, Doe #1, Doe #3, and Ms. Doe testified that they had difficulties searching for new homes because they were unable to accurately calculate the 1,000 feet distances. (Id. at 3831-42.) Ms. Doe testified that
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she looked at properties farther than 1,000 feet from schools “so that I know that I’m okay.” (Id. at 3842.)
While a prescribed distance may appear concrete on its face, without adequate guidance about how to measure the distance, such provisions are suspectible to vagueness concerns. For example, in Cunney v. Bd. of Trustees, 660 F.3d 612 (2d Cir. 2011), the Second Circuit considered whether a zoning ordinance that prohibited the building of structures “over two stories tall or four and one-half feet above the easterly side of River Road” was void for vagueness. Id. at 621. The court held that, while the ordinance “affords a reasonable person adequate notice of what it generally prohibits (e.g., three-story buildings will be in violation), it is remarkably unclear with respect to how the four and a half foot limitation is defined.” Id. The ordinance did not specify “from what adjacent elevation point on River Road the height of a building must be measured . . . . Consequently, this shortcoming not only fails to give specific notice of how a permit applicant should design his site plan so that the proposed building complies with that restriction, but it also fails to provide an objective standard that Village itself can apply . . . .” Id. Similarly, the geographic exclusion zone provisions in SORA generally inform Plaintiffs that they may not reside, work, or loiter within 1,000 feet of a school zone, but, like the ordinance at issue in Cunney, SORA does not clarify how to measure the 1,000 feet.
It is unclear whether SORA’s exclusion zones should be measured from only the real property on which educational instruction, sports, or other recreational activities take place—excluding the parking lot, administrative buildings, and other real property used for other purposes—or whether the zone should be measured from the school
14

property line even when some of the real property is not used for one of the stated purposes. An attorney with the Prosecuting Attorneys’ Association of Michigan testified that prosecutors share “a pretty strong consensus that [the 1,000 feet distance] is measured property line to property line.” (Dkt. # 90, Pg. ID 3830.) Even assuming that this reflects SORA’s intended meaning, it nonetheless would be difficult for law enforcement and registrants to parse through school-owned real property to determine which is used for instruction, sports, or recreation, and which is not. However, the prosecutors’ alleged consensus does not reflect a literal reading of SORA. A literal reading of SORA would exclude from the definition of “school property” parking lots, school administrative buildings, and other parts of a school’s real property where no instruction, sports, or other recreational activcities occur. This literal, but arguably less practical, reading of SORA is bolstered by the rule of lenity because it reads the statute’s ambiguity in the registrants’ favor.
Assuming the 1,000 feet zones were measured from the property line, registrants would still be unable to reasonably determine the boundaries of the exclusion zones, resulting in the sort of “over-policing” described by Doe #4's partner. Michigan has not provided registrants with a map of exclusion zones or a list of all school properties. Defendants suggest that registrants can rely on Google maps (www.google.com/maps) and phone books to determine if their potential address is within 1,000 feet of an exclusion zone. (Dkt. # 97, Pg. ID 5767.) However, such tools do not eliminate many of the sources of vagueness. First, neither Google maps nor phone books provide parcel data or clearly mark property lines. Second, while Google maps can provide helpful estimates as to distances between two properties, it would not provide a registrant with
15

the necessary detail to determine whether a property that is close to 1,000 feet away from a school property line falls within an exclusion zone.
Furthermore, Defendants acknowledge that neither the Michigan State Police nor current registrants have the necessary data to precisely determine the geographic exclusion zones. Michigan is developing software called Offender Watch that reportedly will provide law enforcement with a standardized guideline for determining exclusion zones, but Offender Watch cannot currently conduct parcel to parcel measurements because the State Police do not have the necessary data. (Dkt. # 90, Pg. ID 3831 (“The [Michigan State Police’s Sex Offender Registration] Unit has tried but been unable to obtain parcel data . . . .”).) Moreover, Offender Watch will not include all properties as defined by SORA, but only “active schools according to the Michigan Department of Education.” (Dkt. # 90, Pg. ID 3830-31.) Nothing in Defendants’ Rule 52 motion or the Joint Statement of Facts suggests that law enforcement has the means to calculate the exclusion zones if a court should determine that the 1,000 feet distance should be measured from only the parts of a school’s real property used for instruction, sports, or other recreational activities.
SORA does not provide sufficiently definite guidelines for registrants and law enforcement to determine from where to measure the 1,000 feet distance used to determine the exclusion zones, and neither the registrants nor law enforcement have the necessary data to determine the zones even if there were a consensus about how they should be measured. Accordingly, due to SORA’s vagueness, registrants are forced to choose between limiting where they reside, work, and loiter to a greater extent than is required by law or risk violating SORA.
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ii. Loitering

Next, Plaintiffs contend that SORA’s prohibition against “loiter[ing]” within 1,000

feet of school property is unconstitutionally vague because the meaning of “loiter” is

“totally unclear.” (Dkt. # 96, Pg. ID 5686.) SORA defines “loiter” to mean “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.” Mich. Comp. Laws

§

28.733(b). Plaintiffs argue that it is unclear “whether they are permitted to attend

parent-teacher conferences, go to a school movie night, or take their children to a

school play-ground on the weekend.” (Dkt. # 96, Pg. ID 5687.) Defendants counter that

the term is clear, and describe Plaintiffs’ argument as “making some kind of ‘as-applied’

challenge without the statute actually having been applied in the manner they argue.”

(Dkt. # 97, Pg. ID 5770.) But Plaintiffs’ challenges are more than hypothetical. As

discussed above, they need not risk violating SORA in order to challenge the law;

Plaintiffs may challenge the definition of “loiter” to the extent that it has curtailed their

conduct. Cf. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).

SORA’s prohibition on loitering has curtailed Plaintiffs’ conduct. For example, in

order to avoid risking a SORA violation, Doe #3 does not “attend school activities like

movie nights, math nights, bingo nights, open house/meet the teacher, talent shows,

musicals, concerts or plays.” (Dkt. # 90, Pg. ID 3861.) Likewise, Doe #3’s wife

suggests that Doe #3 avoids “waiting for [her] children to come out of school and talk to

his niece or nephew or observe his own children walking down from school” for fear that

this conduct would violate the prohibition on loitering. (Dkt. # 90, Pg. ID 3853.) Thus,

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the court construes the vagueness challenge against the definition of “loiter” as an as applied challenge.
The definition of “loiter” contains two parts: (1) “remain[ing] for a period of time” and (2) “under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors.” Mich. Comp. Laws § 28.733(b). As this is an as applied challenge, the court will review the vagueness of this term as it relates to the activities from which Plaintiffs claim to have refrained. First, “ordinary people, exercising ordinary common sense can understand” the meaning of the phrase “remain for a period of time.” States v. Salisbury, 983 F.2d 1369, 1378 (6th Cir. 1993). Webster’s Third New International Dictionary 1919, 2394 (3d ed. 1981) defines “remain” to mean “to stay in the same place or with the same person or group,” and it defines “time” to mean “a period during which something (as an action, process, or condition) exists or continues.” Whether or not the phrase “period of time” embodies a degree of ambiguity by itself, the phrase “remain for a period of time” refers to staying in a school zone for any duration. Driving one’s child to school and then immediately leaving the school zone does not involve “remain[ing]” in the school zone for any period of time; meanwhile, waiting at the school to pick up one’s child after school does involve “remain[ing]” in the school zone for a period of time. Ordinary people using common sense can deduce that, to “attend parent-teacher conferences, go to a school movie night, or take their children to a school play-ground on the weekend” (Dkt. # 96, Pg. ID 5686-87), a registrant would need to “remain for a period of time” in a school zone. Likewise, Doe #3’s abstention from waiting for his wife’s children after school and observing his children walking from school is not the result of unconstitutional
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vagueness in the phrase “remain for a period of time” because such activities fall within the meaning of the phrase.
The second component of the definition of “loiter” raises a more difficult question. In City of Chicago v. Morales, 527 U.S. 41 (1999), the Supreme Court considered whether an ordinance prohibiting criminal street gang members from loitering was unconstitutionally void for vagueness. A plurality of the court found that the definition of the term “loiter” was ambiguous. The ordinance at issue in Morales defined “loiter” as “to remain in any one place with no apparent purpose.” Id. at 56. The plurality reasoned, “It is difficult to imagine how any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an ‘apparent purpose.’” Id. at 57.
Similarly, just as it would be difficult to determine if a Chicagoan were standing in a place with no apparent purpose, in many circumstances, it would be difficult—perhaps not as difficult, but difficult nonetheless—to determine if a Michigander were standing in an exclusionary zone “apparently” for the specific, primary purpose of observing or contacting minors. Conduct such as a registrant starting a conversation with a minor, videotaping a minor, or standing on a playground by himself watching minors, would likely fall within the definition of “loitering” with little room for a registrant to argue ambiguity. However, it remains ambiguous whether a registrant may attend a school movie night where he intends only to watch the screen, or a parent-teacher conference where students may be present. The Morales plurality explained that “the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law [because] ‘[n]o one may be required at peril of life, liberty or property to
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speculate as to the meaning of penal statutes.’” Id. (quoting Lanzetta v. New Jersey, 306 U.S. 451 (1939)). SORA’s present definition of “loiter” is sufficiently vague as to prevent ordinary people using common sense from being able to determine whether Plaintiffs are, in fact, prohibited from engaging in the conduct from which Plaintiffs have refrained.
iii. Reporting Requirements Plaintiffs also argue that SORA’s reporting requirements are unconstitutionally vague. In particular, Plaintiffs challenge the requirement that a registrant must “report in person and notify the registering authority . . . immediately after . . . the individual purchases or begins to regularly operate any vehicle,” Mich. Comp. Laws § 28.725(1)(g), and the requirements that a registrant must report (1) “[a]ll telephone numbers registered to the individual or routinely used by the individual,” (2) “[a]ll electronic mail addresses and instant message addresses assigned to the individual or routinely used by the individual,” and (3) “[t]he license plate number, registration number, and description of any motor vehicle, aircraft, or vessel owned or regularly operated by the individual and the location at which the motor vehicle, aircraft, or vessel is habitually stored or kept.” Mich. Comp. Laws § 727(1)(h)-(j). Plaintiffs assert that the terms “routinely used,” “regularly operated,” and “habitually stored and kept” are vague and undefined. (Dkt. # 96, Pg. ID 5687-88.) The requirements to report telephone numbers and e-mail and instant message addresses implicate First Amendment free speech rights and are, therefore, subject to facial vagueness challenges. The requirement to report vehicles does not implicate First Amendment rights, but Plaintiffs adequately articulate how alleged vagueness in
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the term “regularly operate” has caused certain Plaintiffs to choose between potentially over-reporting information or risk violating SORA. For example, Doe #1’s employer owns a fleet of vehicles, and Doe #1 testified that he is unsure whether he must report all of the vehicles (and inform his employer that all of the vehicles have been reported) because there is a chance he may drive any particular vehicle at some point. (Dkt. # 90, Pg. ID 3933.) Likewise, Doe #2 drives his girlfriend’s car “once a quarter to go register and maybe two or three other times in that period.” (Id.) Doe #2 does not know if this constitutes “regular use” for the purposes of SORA. The court interprets the record as setting forth a vagueness challenge to the vehicle reporting requirement as applied to Does ##1 and 2. For the same reasons, Plaintiffs may also challenge the telephone reporting provision as applied to Doe #4. Doe #4 is unsure whether he must register his mother’s telephone number, which he uses “on occasion.” (Dkt. # 90, Pg. ID 3936.) See Babbitt, 442 U.S. at 298 (internal quotation marks and citations omitted) (“When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.”). For both the as applied challenges and facial challenges, the vagueness in these provisions renders them constitutionally infirm for the reasons discussed below.1
SORA does not define “regularly” or “routinely” as used in §§ 28.725(1)(g) and 727(1)(h)-(j). “Unless they are otherwise defined, the words in a statute ‘will be
1Plaintiffs have not alleged an as applied challenge to the phrase “habitually stored and kept,” and the court will not consider a facial challenge to this phrase.
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interpreted as taking their ordinary, contemporary, common meaning.’” Deutsche Bank
Nat’l Trust Co. v. Tucker, 621 F.3d 460, 463 (6th Cir. 2010) (quoting United States v.
Plavcak, 411 F.3d 655, 660 (6th Cir. 2005)). Webster’s Third New International
Dictionary 1913 (3d ed. 1981) defines “regularly” as “in a regular, orderly, lawful, or
methodical way,” and it defines “regular,” in relevant part, as “steady or uniform in
course, practice, or occurrence” and “returning, recurring, or received at stated, fixed, or
uniform intervals.” In the court’s March 18, 2014 Opinion and Order Granting in Part
and Denying in Part Defendants’ Amended Motion to Dismiss, the court denied
Defendants’ motion to dismiss as to Count VII, finding that a similar dictionary definition
of the term “regularly” does not “appear to provide an individual of ordinary intelligence
a reasonable opportunity to know when he or she must report their use of a vehicle.
Nor does the word ‘regularly,’ without some additional elaboration of its meaning,
constitute a precise enough standard so as to avoid arbitrary enforcement by the State.”
(Dkt. # 27, Pg. ID 699.) Regarding this second point, the court explained in its previous
order:
This second point is illustrated by the complaint’s averment that John Doe IV was told by police officials that borrowing a car three times is the threshold for regular operation. (See Compl. ¶ 31.) There is no explanation in either the complaint or the attached exhibits, and Defendants offer none in their briefing, of how police could have arrived at the conclusion that the borrowing of a vehicle three times equals regular operation. If the individual police officers arrived at this conclusion on their own, the reporting provision certainly raises red flags. On the other hand, and only hypothetically, if police based this three-event standard on some formal guidance published by the State and made available to the public, the vagueness objection to § 28.725(1)(g) may be obviated. A more robust factual record is essential in this regard. However, the court cannot dismiss Count VII simply because Defendants contend that the challenged provisions have been in effect for several years and Plaintiffs have allegedly satisfied the provisions.
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(Dkt. # 27, Pg. ID 699-700.) In their Rule 52 motion, Defendants reassert the same argument made in their
motion to dismiss that “none of the Plaintiffs expressed any doubt or uncertainty over what ‘regularly’ means.” (Dkt. # 97, Pg. ID 5765.) Defendants also note that the phrase “regularly operate” was introduced into SORA at the request of the ACLU (Id. at 5766); however, this is inapposite to whether the is phrase is unconstitutionally vague. The Joint Statement of Facts indicates that Plaintiffs and law enforcement are unsure as to the meaning of the term “regularly” (Dkt. # 90, Pg. ID 3930-37), and nothing in Defendants’ motion alleviates the court’s concern, expressed in its previous order, that the term “regularly’ is vague under both parts of the vagueness test.
The term “routinely” implicates the same vagueness concerns as the term “regularly.” Webster’s Third New International Dictionary 1981 (3d ed. 1981) defines “routine” as, inter alia, “a standard practice,” “the habitual method of performance of established procedures,” and “of a commonplace or repetitious character.” Both of these terms indicate to registrants and police officers that some degree of normal repetition is needed to be deemed to have regularly or routinely engaged in an activity. But these terms are not sufficiently concrete (1) “to ensure fair notice to the citizenry” or (2) “to provide standards for enforcement by the police, judges, and juries.” Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1104 (6th Cir. 1995).
The court’s analysis of these terms is guided by Belle Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553 (6th Cir. 1999). In Belle Maer Harbor, the Sixth Circuit struck down an ordinance regulating “bubbling devices,” which “extract relatively warmer water from the bottom of a waterway and bring that water to the surface, creating an
23

area of open water which otherwise would be covered by ice.” Id. at 555 n.2. The ordinance provided in relevant part:
D. The amount of open water created by a bubbling system shall be controlled as follows: 1. In canals one hundred ten (110') feet or less in width, a person choosing to bubble shall operate, maintain and periodically inspect the bubbling system apparatus so as to maintain an open water radius surrounding the bubbled object not to exceed five (5') feet, or as determined by the inspecting officer to be a reasonable radius. Id. at 555 n.3. The plaintiffs in Belle Maer Harbor challenged the ordinance as void for vagueness, and the Sixth Circuit focused on whether the term “reasonable” “bound[ed] the inspection officer’s enforcement decisions sufficiently to prevent ad hoc, discriminatory enforcement of the open water restriction. Id. at 558. The court noted that “a failure to define a term within a statute or ordinance does not render the statute unconstitutionally vague, where the common meaning of the word provides both adequate notice of the conduct prohibited and of the standards for enforcement.” Id. The court concluded that “a commonly accepted meaning [did not] exist[] for the term ‘reasonable’ which would provide an inspection officer with guidance in interpreting the Ordinance and in executing his or her enforcement duties with any uniformity.” Id. The court found that the Black’s Law Dictionary definition of reasonable “demonstrates that a standard grounded on reasonableness in this context is susceptible to a myriad of interpretations conferring on the inspectors ‘a virtually unrestrained power to arrest and charge persons with a violation.’” Id. (quoting Kolender, 461 U.S. at 360). Thus, the court held that the ordinance was unconstitutionally vague because it entrusted the
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enforcement of the ordinance “to the moment-to-moment judgment of the policeman on his beat” and because “the court [could not] conclude that a person of ordinary intelligence could determine from this standard the proscribed conduct.” Id. at 559.
Similar to the ordinance’s use of the word “reasonable” in Belle Maer Harbor, the commonly accepted meaning of the terms “regularly” and “routinely” do not provide sufficient guidance to law enforcement or registrants to survive a due process challenge both generally and as applied to Plaintiffs. The frequency and consistency with which Doe #1 must drive his employers’ vehicles in order to trigger the registration requirement is unclear. Likewise, it is ambiguous whether Doe #2’s use of his girlfriend’s car a few times a quarter constitutes regular use, particularly in light of the rule of lenity, and a reasonable person and well-intentioned law enforcement officer would struggle to determine whether Doe #4’s occasional use of his mother’s phone was “routine.” The ambiguity in the reporting requirements is further highlighted by officers’ and prosecutors’ responses to an informal telephonic survey questions conducted by volunteers for Plaintiffs, law enforcement officers’ answers to deposition questions, and law enforcement officers’ guidance to Plaintiffs.
Volunteers for Plaintiffs asked local law enforcement agencies and prosecutors’ offices how often a registrant could use a vehicle before triggering SORA’s reporting requirements. “[S]ome respondents did not know the answer, and others provided answers ranging from once or twice, to six or seven times, to ‘whatever is reasonable.’” (Dkt. # 90, Pg. ID 3931.) When asked during a deposition whether a registrant who used a vehicle once during a three-month period had to report the vehicle, the law
25

enforcement officer testified, “That would be probably a judgment call by the prosecutor or the law enforcement agency.” (Dkt. # 60-8, Pg. ID 1853.) He answered in the affirmative when asked if “each law enforcement agency might come to a different conclusion about what regular use means.” (Id.) Furthermore, law enforcement told Doe #4 that “if he borrows a car more than three times he must immediately report in person,” but such use does not clearly trigger SORA’s reporting requirements. (Dkt. # 90, Pg. ID 3935.) Similarly, a local police department informed Ms. Doe that she had to register a vehicle “if she was driving it or if it was parked in her driveway.” (Id. at 3936.)
The disparate views of the meaning of the term “regularly use” exemplify the lack of a standardized guidelines for the enforcement of SORA’s reporting provisions. The Belle Maer Harbor court emphasized, “although we do not require impossible clarity in standards governing conduct, the court must apply a relative strict standard of scrutiny here where criminal sanctions apply.” Belle Maer Harbor, 170 F.3d at 559 (citing Kolender, 461 U.S. at 361). Here, SORA subjects registrants to criminal sanctions if they do not comply with the registration requirements, but SORA’s vagueness leaves law enforcement without adequate guidance to enforce the law and leaves registrants of ordinary intelligence unable to determine when the reporting requirements are triggered.
iv. Additional Terms and Phrases Challenged by Plaintiffs In Plaintiffs’ Response to Interrogatory 11, Plaintiffs challenge several additional terms and phrases as unconstituionally vague, including, inter alia, the terms “employee,” “immediately,” “residence,” “student,” and many others. (See Dkt. # 64-1, Pg. ID 2137-42.) In addition to the other terms discussed in this Section, Plaintiffs’ Rule
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52 Motion specifically identifies as vague the terms “immediate,” “employer,” “temporarily reside,” and “designation used in Internet communications,” and it incorporates the other terms listed in the Response to Interrogatory 11 by reference. (Dkt. # 96, Pg. ID 5687-88.)
Plaintiffs may challenge SORA on vagueness grounds only as applied to Plaintiffs unless the challenges implicate the First Amendment. As stated above, the parties challenging the statutes “bear[] the burden of establishing that the statute is vague as applied to [their] particular case, not merely that the statute could be construed as vague in some hypothetical situation.” Kernell, 667 F.3d at 750. Plaintiffs have not carried this burden for the majority of terms and phrases listed in their Response; rather, their Motion asserts the sort of facial challenge that is reserved for laws implicating First Amendment rights. Two terms or phrases identified by Plaintiffs as vague implicate Plaintiffs’ First Amendment rights and are therefore subject to facial challenges: the term “immediately” and the phrase “any other designations used in internet communications or postings.” See infra Section III.C. Therefore, the court may review Plaintiffs’ facial vagueness challenge of this term and phrase.
Section 28.725(1)(f) requires registrants to “report in person and notify the registering authority . . . immediately after . . . [t]he individual establishes any electronic mail or instant message address, or any other designations used in internet communications or postings.” SORA defines “Immediately” to mean “within 3 business days.” Mich. Comp. Laws § 28.722(g). This definition provides registrants with adequate notice and law enforcement with adequate guidance as to the immediacy with
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which Plaintiffs must report new Internet designations. Black’s Law Dictionary (10th ed. 2014) defines “business day” as “[a] day that most institutions are open for business, usu[ally] a day on which banks and major stock exchanges are open, excluding Saturdays, Sundays, and certain major holidays.” Courts regularly use the term “business days” as defined in Black’s. E.g., Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502 (1990) (distinguishing “business days” from “calendar days”). Plaintiffs attempt to insert ambiguity into the term by suggesting that “it is unclear what ‘business days’ means in the context of reporting to law enforcement authorities that provide service seven days a week.” (Dkt. # 64-1, Pg. ID 2137.) But as evident in Black’s definition, the term refers to days that most institutions are open for business and most institutions are not open on weekends. SORA’s use of the term “immediately” is in no way vague or ambiguous.
Likewise, the phrase “designation used in Internet communications or postings,” when given the narrowing construction discussed below, is sufficiently clear to give fair notice to registrants as to what information must be reported and adequate guidance to law enforcement and the courts to provide standard enforcement of the law. See Columbia Natural Res., 58 F.3d at 1104. It is an intrinsic aspect of language that every word contains some degree of ambiguity. Cf. Johnson v. United States, 559 U.S. 133, 139 (2010) (Scalia, J.) (“[C]ontext determines meaning.”). “You’re bad!” can be an insult or a particularly nice compliment; “this is Steven Spielberg’s last film” can mean that it is the most recent one he directed or it could mean that it is the final film that he will ever direct; and “Mark Twain” can refer to Samuel Langhorne Clemens, the author of The Adventures of Tom Sawyer (1876), a crater on Mercury, or the nautical term for two
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fathoms (twelve feet). In Green v. Block Laundry Mach. Co., 490 U.S. 504 (1989), the
Supreme Court explored the ambiguity in the word “defendant” as used in a former
version of Federal Rule of Evidence 609(a)(1):2
The word [“defendant”] might be interpreted to encompass all witnesses, civil and criminal, parties or not. It might be read to connote any party offering a witness, in which event Rule 609(a)(1)'s balance would apply to civil, as well as criminal, cases. Finally, “defendant” may refer only to the defendant in a criminal case.
Id. at 511 (citations omitted). The Court rejected “an interpretation [of the Rule] that
would deny a civil plaintiff the same right to impeach an adversary's testimony that it
grants to a civil defendant,” id. at 510, and held that Rule 609(a) “requires a judge to
permit impeachment of a civil witness with evidence of prior felony convictions
regardless of ensuant unfair prejudice to the witness or the party offering the testimony.”
Id. at 527. In a separate opinion, Justice Scalia—a strong advocate for giving statutes
their plain meaning, see INS v. Cardoza-Fonseca, 480 U.S. 421, 452-55 (1987) (Scalia,
J, concurring)—joined the majority in advocating interpreting the word “defendant”
against its literal meaning to avoid “produc[ing] an absurd, and perhaps unconstitutional,
result.” Green, 490 U.S. at 527 (Scalia, J., concurring); id. at 528-29 (“The word
2 In 1989, Rule 609(a) provided in relevant part:
General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
Green, 490 U.S. at 509.
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‘defendant’ in Rule 609(a)(1) cannot rationally (or perhaps even constitutionally) mean to provide the benefit of prejudice-weighing to civil defendants and not civil plaintiffs. Since petitioner has not produced, and we have not ourselves discovered, even a snippet of support for this absurd result, we may confidently assume that the word was not used (as it normally would be) to refer to all defendants and only all defendants.”).
As with the seemingly unambiguous words “bad,” “last,” and “defendant,” the phrase “any other designations used in internet communications or postings” includes some degree of ambiguity. Webster’s Third New International Dictionary 612 (3d ed. 1981) defines “designation,” inter alia, to mean “distinguishing name.” Law enforcement and registrants of ordinary intelligence would reasonably understand this phrase to include Internet aliases used to convey and exchange information. See Webster’s Third New International Dictionary 460 (3d ed. 1981) (defining “communicate” to mean “to make known,” “inform a person of,” and “convey the knowledge or information of”); Webster’s Third New International Dictionary 1771 (3d ed. 1981) (defining “post” to mean “to affix . . . to a post, wall or other usual place for public notice); Post, MerriamWebster’s Online Dictionary http://www.merriam-webster.com/dictionary/post (last visited Mar. 30, 2015) (defining “post” as “to publish (as a message) in an online forum (as an electronic bulletin board)”).
While the phrase uncontroversially includes social media aliases and other aliases used for the primary purpose of exchanging information with other Internet users, there are many Internet aliases that individuals use that involve some degree of Internet communication but do not clearly fall within SORA. Plaintiffs ask, “Must an
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individual report when setting up a new on-line bank account, Amazon account, Mlive account, gaming account, etc.?” (Dkt. # 64-1, Pg. ID 2139.) Through an alias created for a massively multiplayer online role-playing game (“MMORPG”), a registrant would likely engage in substantial communication with other individuals, including minors. Through an Ebay account, a registrant might post items for sale, communicate bids, and engage in private communications with sellers or buyers about the status of a transaction. Individuals use online banking primarily to access their financial information, pay bills, deposit funds, and engage in other economic activity, but these accounts may also be used to communicate with bankers to facilitate such activities. In the broadest sense, virtually all online accounts are Internet designations used for some sort of communication.
In order to alleviate ambiguity and in light of the rule of lenity, the court interprets SORA’s catch-all Internet designation phrase to apply to Internet designations that are primarily used in Internet communications or postings. This construction is consistent with a plain reading of the statute. “[U]nder the established interpretive canons of noscitur a sociis and ejusdem generis, ‘[w]here general words follow specific words in statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.’” Wash. State Dept. of Soc. and Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384 (2003) (quoting Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001)); see Yates v. United States, 135 S. Ct. 1074, 1086-87 (2015) (plurality) (applying the canon of ejusdem generis in holding that fish do not fall within the Sarbanes-Oxley Act of 2002's, 18 U.S.C. § 1519, prohibition against knowingly destroying “tangible object[s]”
31

because that term is limited to objects “used to record or preserve information”). “Any other designation used in internet communications or postings” is a general phrase which follows the more specific terms “electronic mail” and “instant message address” in § 28.725(1)(f). E-mail and instant message addresses are used primarily for the purpose of communicating with other individuals online. Therefore, applying the canon of ejusdem generis, the court construes “other designations used in internet communications or postings” to refer only to designations used primarily for the purposes of Internet communications or postings.
This construction excludes designations used primarily to engage in e-commerce and online banking, or to read content like online newspaper accounts even though registrants may post comments at the end of online newspaper articles or “chat” with Amazon representatives. Meanwhile, a MMORPG alias is created for the primary purpose of interacting with other online gamers and engaging in a substantial amount of communications. Such aliases are “similar in nature” to e-mail and instant message addresses and fall within the Internet designation provision.
This narrowing construction also has the virtue of being consistent with how law enforcement is currently trained to enforce § 28.725(1)(f). The manager of Michigan’s sex offender registry testified that Michigan State Police’s Sex Offender Registration Unit trains law enforcement to record e-mail addresses and social media screen names, but not online banking information. (Dkt. # 60-6, Pg. ID 1800.) The manager also testified that online gaming screen names fall within SORA. (Id. at 1801.)
In sum, using this narrowing construction, § 28.725(1)(f) is sufficiently clear to provide fair notice to registrants and adequate guidance to law enforcement.
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2. Strict Liability Plaintiffs further contend that SORA violates the Due Process Clause because it imposes strict liability for many reporting and exclusion zone violations. (Dkt. # 46, Pg. ID 900; Dkt. # 96, Pg. ID 5690-92.) Defendants do not address Plaintiffs’ strict liability arguments in their responses to Plaintiffs’ Rule 52 Motion. Similar to the void for vagueness doctrine, strict liability in the context of criminal statutes raises concerns of fair notice. “[E]ven when a statute is specific about which acts are criminal, [the] due process analysis is not complete. When . . . predicate acts which result in criminal violations are commonly and ordinarily not criminal, [courts] must ask the fair notice question once again.” United States v. Apollo Energies, Inc., 611 F.3d 679, 687 (10th Cir. 2010). “It is . . . the general rule of law, and the dictate of natural justice, that to constitute guilt there must be not only a wrongful act, but a criminal intention.” Morissette v. United States, 342 U.S. 246, 274 (1952). In Liparota v. United States, 471 U.S. 419 (1985) the Supreme Court held that, to be convicted for violating a statute governing food stamp fraud, the government must provide that the defendant knew that the acquisition or possession of food stamps was in an unauthorized manner. Id. at 433. The Court explained that, for most criminal statutes imposing strict liability, “Congress has rendered criminal a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community’s health or safety;” meanwhile, the acquisition or possession of food stamps is not so obviously against the public interest that a reasonable person should be expected to know it is regulated. Id. Plaintiffs insist that taking one’s children to a park near a school or failing to report a new e-mail account
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are similarly not inherently blameworthy activities, and, therefore, the court should read a knowledge requirement into SORA violations. The court agrees.
SORA imposes myriad restrictions and reporting requirements that affect many aspects of registrants’ lives. Ambiguity 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. Moreover, law enforcement officers’ disparate answers to survey and deposition questions about what SORA’s reporting requirements and prohibitions highlight SORA’s imperfect ability to provide fair notice to all persons who it covers. The frequency with which SORA is amended, as well as today’s highly mobile population, make a knowledge requirement even more important to ensure due process of law.
The court’s decision is guided by Lambert v. California, 355 U.S. 225 (1957), in which the Supreme Court considered whether a Los Angeles ordinance making it “unlawful for ‘any convicted person’ to be or remain in Los Angeles for a period of more than five days without registering” and “requir[ing] any [convicted] person having a place of abode outside the city to register if he comes into the city on five occasions or more during a 30-day period.” Id. at 226. The particular question before the Court was “whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.” Id. at 227. The Court added a knowledge requirement to the ordinance and held that “[w]here a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Id. at 229-30.
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Recognizing a knowledge requirement in SORA does not defang the legislation. Instead, it shifts responsibility to courts, law enforcement, and probation officers to make sure persons convicted of sex offenses are informed of their legal obligations. Such a sharing of responsibility is grounded in the text of SORA. SORA directs the department of corrections to “mail a notice to each individual registered under [SORA] who is not in a state correctional facility explaining the individual’s duties under this act as amended.” Mich. Comp. Laws § 28.725a(1). The Act also directs the department of corrections to “provide written notice to [an] individual [upon the individual’s release from a state correctional facility] explaining his or her duties under [SORA] and the procedure for registration, notification, and verification and payment of registration fee.” Mich. Comp. Laws § 28.725a. SORA was not enacted to serve as a trap for individuals who have committed sex offenses in the past (and who already have served their sentences). Rather, the goal is public safety, and public safety would only be enhanced by the government ensuring that registrants are aware of their obligations.
3. Impossibility Plaintiffs also allege that “SORA . . . contains provisions with which compliance is impossible,” rendering the Act in violation of the Due Process Clause. (Dkt. # 46, Pg. ID 900.) Their Rule 52 motion identifies two such provisions. First, Plaintiffs contend that the requirement for registrants to report in person makes compliance with SORA impossible because it may be infeasible for persons subject to SORA who are ill or injured or facing an emergency to timely report in person. (Dkt. # 96, Pg. ID 5692.) Were Plaintiffs’ reasoning applied to all legislation, no law that imposes an affirmative duty on an individual to perform a task would be consistent with
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due process of law because it would always be the case that some individuals could be too infirm to perform the affirmative duty. If the court interprets Plaintiffs’ argument as applying exclusively to laws involving strict liability, adopting such an argument would still call into question the constitutionality of any strict liability statute or regulation imposing a duty to act.
Plaintiffs’ impossibility argument raises a serious constitutional issue, but it is unaccompanied by any allegations that persons have been penalized for failing to report in person when required under SORA, due to illness, injury, or emergency. Plaintiffs cite to an incident in 2001 when Doe #3 failed to comply with the quarterly in-person reporting requirement because “Doe #3 came back from a vacation near the end of the 15-day registration period,” and “[t]he police station was closed from Friday, Saturday, and Sunday for a long weekend.” (Dkt. # 90, Pg. ID 3750-51.) As a consequence of Doe #3’s subsequent late reporting, he was found in violation of his probation, and his HYTA status was revoked. (Id. at 3751.) This is not an incident in which a registrant’s compliance with SORA was impossible. Defendants note that “it is not clear why Doe #3 chose to return from vacation at that time, or if he made any effort to check the police station’s availability before going on vacation, or if he attempted to go to any other police agency to report once he learned that his local police station was closed.” (Id.) Requiring an individual to slightly alter his vacation plans is a far cry from a due process violation.
“It is the duty of federal courts to avoid the unnecessary decision of the constitutional questions.” Tower Realty v. City of E. Detroit, 196 F.2d 710, 724 (6th Cir.1952); see United States v. Elkins, 300 F.3d 638, 647 (6th Cir. 2002) (“Courts
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should avoid unnecessary constitutional questions.”); Ashwander v. TVA, 297 U.S. 288,
347 (1936) (Brandeis, J., concurring) (“It is not the habit of the court to decide questions
of a constitutional nature unless absolutely necessary to a decision of the case.”
(citation omitted)). This principle of constitutional avoidance counsels against resolving
the question of whether SORA may penalize persons who fail to report in person due to
illness, injury or emergency where, as here, there is no indication that the law has ever
been enforced in such a manner. Furthermore, as will be discussed infra, the “in
person” reporting requirement places an unnecessarily burdensome obstacle that limits
protected First Amendment speech and, therefore, renders that provision
unconstitutional. Accordingly, the legislature will have cause to revisit SORA’s
requirement that registrants report in person. Under the circumstances, it is prudent for
the court to abstain from ruling on this issue.
Second, Plaintiffs argue that SORA violates the Due Process Clause because
Doe #4 “is automatically and unpreventably in violation” of SORA because “he is
homeless [and] cannot update his driver’s license to match his registration address
(which is ‘homeless’).” (Dkt. # 96, Pg. ID 5692.) Mich. Comp. Laws § 28.725a(7)
provides:
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 an official state personal identification card issued under 1972 PA 222, MCL 28.291 to 28.300, with the individual’s current address. The license or card may be used as proof of domicile or residence under this section. In addition, the officer or authorized employee may require the individual to produce another document bearing his or her name and address, including, but not limited to, voter registration or a utility or other bill. The department may specify other satisfactory proof of domicile or residence.
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A violation of § 28.725a(7) subjects an individual to “imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.” Mich. Comp. Laws § 28.729(2). Plaintiffs do not allege that Doe #4 has been charged with violating SORA due to his failure to update his driver’s license or identification card. However, the court acknowledges that Doe #4 is left in the unenviable position of fearing that he may, at any moment, be arrested and sentenced to imprisonment for violating SORA. Here, there is a credible threat of prosecution, and Doe #4 need not wait until he faces criminal prosecution to seek relief. See Babbitt, 442 U.S. at 298.
Absent from the record is information about if and how homeless persons may obtain state identification cards. The Supreme Court of Michigan has held that “homelessness is not a bar to compliance with SORA because homelessness does not preclude an offender from entering a police station and reporting to a law enforcement agency regarding the offender's residence or domicile.” People v. Dowdy, 802 N.W.2d 239, 242 (Mich. 2011). While the majority in Dowdy noted that SORA directs registrants to maintain a driver’s license or state identification card, it did not address whether it is feasible for homeless registrants to obtain such identification. Id. at 245. To the contrary, the majority implicitly acknowledges that homeless registrants may have difficulty obtaining a driver’s license or state identification card by emphasizing that “those are not the exclusive means by which an offender may prove residence or domicile to law enforcement” and that, “if a sex offender is unable to provide any of the statutorily specified documents . . . , the Michigan State Police is empowered to formulate alternative methods . . . to verify the offender’s residence or domicile.” Id.
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The Dowdy dissent insisted that § 28.725a(7)’s (then § 28.725a(8)) requirement
for registrants to maintain a driver’s license or state personal identification card with
their current address was unlawful because compliance is impossible for homeless
registrants. Justice Kelly, writing for herself and two other justices, explained:
[T]o obtain a driver’s license or state identification card, the Secretary of State requires an applicant to provide at least two documents “with [his or her] name and Michigan residence address. Hence, by the Secretary of State's own requirements, an individual cannot obtain a state identification card absent a valid residential address, which defendant did not have. Nor does the majority, the Michigan State Police, or the prosecutor indicate how a homeless sex offender like defendant could obtain an identification card without a permanent address, much less change an address to reflect transient accommodations.
Id. at 259 (Kelly, J., dissenting) (footnote omitted).
In order for the court to determine whether SORA’s requirement for registrants to
maintain a driver’s license or state personal identification card is constitutional, as
applied to Doe #4 and other homeless registrants, the court needs additional briefing on
how and if homeless registrants can obtain such identification. The court will reserve
ruling on the constitutionality of this provision until the parties have submitted additional
briefing.
B. Count IV: The Fundamental Right to Participate in the Education and Upbringing of Children
In Count IV, Plaintiffs claim that SORA’s geographic exclusion zones violate the
Due Process Clause of the Fourth Amendment because they (1) substantially interfere
with Plaintiffs’ ability to participate in the upbringing and education of their children, (2)
do not provide for individualized consideration before restricting this right, and (3) are
not narrowly tailored to serve a compelling state interest. (Dkt. # 46, Pg. ID 897-98.) In
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particular, Plaintiffs first contend that SORA’s prohibition on loitering within 1,000 feet of a school safety zone does allow registrants to contact or observe their own children within the zones and thus prevent registrants from “observ[ing] or contact[ing their] children in half the city.” (Dkt. # 96, Pg. ID 5694.) Second, Plaintiffs argue that, even if the loitering ban does not apply to one’s own children, the ban nonetheless unconstitutionally restricts parental rights because registrants cannot take their children to locations within the school safety zones where other children are likely to be. (Dkt. # 96, Pg. ID 5694-95.)
Defendants argue that the loitering ban “does not implicate a fundamental right, [and therefore] it need only rationally advance some legitimate government purpose.” (Dkt. # 97, Pg. ID 5760.) They contend that this standard is met because the loitering ban advances a state interest in protecting children. (Id.) Further, Defendants assert that, [e]ven were the student safety zones established by SORA to implicate a fundamental right, this claim still fails because the [loitering ban] is narrowly tailored to advance the State’s compelling interest in protecting children.” (Id. at 5760-61.)
“The substantive component of the Due Process Clause protects ‘fundamental rights’ that are so ‘implicit in the concept of ordered liberty’ that ‘neither liberty nor justice would exist if they were sacrificed.’” Doe v. Mich. Dep’t of State Police, 490 F.3d 491 (6th Cir. 2007) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). The right to “direct the education and upbringing of one’s children” is one such fundamental right. Id. (quoting Washington v. Glucksberg, 521 U.S. 702, 720 (1997). “The government cannot infringe on [a fundamental liberty interest] ‘unless the infringement is narrowly tailored to serve a compelling state interest.’” Johnson v. City of Cincinnati, 310 F.3d
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484, 502 (6th Cir. 2002) (quoting Glucksberg, 521 U.S. at 721). But where the law does not infringe on a fundamental right, the court “analyze[s] its constitutionality under the rational basis test,” Walker v. Bain, 257 F.3d 660, 667-68 (6th Cir. 2001), upholding the law “so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996).
“[T]he interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). The liberty interest includes a parent’s right to “the companionship, care, custody and management of his or her children.” Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). However, “the Supreme Court has yet to articulate the parameters of this right,” and the Sixth Circuit has recognized that the right “is neither absolute nor unqualified” and “is limited by an equal[ly] compelling governmental interest in the protection of children, particularly where the children need to be protected from their own parents.” Kottmyer v. Maas, 436 F.3d 684, 690 (6th Cir. 2006).
In the court’s previous opinion granting in part and denying in part Defendants’ motion to dismiss, the court found that the loitering ban “appears to prevent Plaintiffs from engaging in a plethora of activities closely related to the upbringing of their children” and that Defendants failed to “demonstrate that the loitering prohibition is actually narrowly tailored to the State’s interest and fails to explain why a less restrictive prohibition . . . would not effectively achieve the State’s interest.” (Dkt. # 27, Pg. ID 69395.) The court informed the parties that “[f]actual development is warranted” in order for the court to determine whether the loitering ban leaves Plaintiffs with sufficient
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involvement in their children’s lives to warrant rational basis review and, if not, to determine when the ban is narrowly tailored to achieve a compelling governmental interest. (Id. at 695.)
Because of the geographical exclusion zones’ unconstitutional vagueness, the court is ill-equipped to evaluate whether the loitering ban does in fact infringe on parents’ rights to participate in the upbringing and education of their children. Defendant contends that the loitering ban does not infringe on this right because “the [geographic exclusion zone] provisions do[] not outright ban an offender’s presence on school property.” (Dkt. # 97, Pg. ID 5756-57.) They note that registrants may drop off and pick up their children, go to a public library, and attend a parent-teacher conference. However, as previously discussed, ambiguity in the exclusion zones and in the term “loiter” leave registrants of ordinary intelligence unable to determine what behavior is prohibited by SORA. Due to SORA’s vagueness, it is unclear whether a registrant may visit a public library or attend a parent-teacher conference where minors are present without risking arrest from law enforcement. Furthermore, because it is unclear how the geographic exclusion zones are measured, the court is unable to determine the extent to which SORA infringes on a registrant’s ability to find a place to live with his children and the extent to which SORA prevents a registrant from accompanying his children to parks, playgrounds, movie theaters, restaurants, and other establishments and places in the state. Defendants do not themselves provide any viable means for determining how much of Michigan falls within the exclusion zones, and SORA is too vague for the court, registrants, and law enforcement to make this determination.
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Defendants rely on Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) in which the Eighth Circuit found that a statute prohibiting sex offenders from living within 2,000 feet of a school did “not infringe upon a constitutional liberty interest relating to matters of marriage and family in a fashion that require[d] heightened scrutiny.” Id. at 711. The Eighth Circuit reached this conclusion on the ground that “the statute does not directly regulate the family relationship or prevent any family member from residing with a sex offender in a residence that is consistent with the statute.” Id. But a statute need not directly regulate family relations in order to infringe on a person’s right to associate with his family. In Johnson v. City of Cincinnati, 310 F.3d 484 (6th Cir. 2002), the Sixth Circuit struck down as unconstitutional an ordinance that excluded individuals arrested, taken into custody, or convicted of an enumerated drug offense from “drug-exclusion zones” which were defined as “areas where the number or arrests for . . . drug-abuse related crimes for the twelve (12) month period preceding the original designation is significantly higher than that for other similarly situated/sized areas of the city.” Id. at 487-88. The Sixth Circuit held that the ordinance “plainly infringed on [a grandmother’s] right to participate in the rearing of her grandchildren” because it “effectively banished” her from the neighborhood in which her grandchildren resided “and precluded . . . her regular role in caring for her grandchildren.” Id. at 505. Furthermore, at least one court has held that a similar ordinance, which “prohibits registered sex offenders from residing or loitering within 500 feet of any school, park, playground, recreation area, or day care facility or within 25 feet of a school bus stop,” infringes on fundamental parental rights. Elwell v. Township of Lower, 2006 WL 3797974, at *1 (N.J. Super. Ct. 2006). The Elwell court concluded:
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The geographical restrictions on where the plaintiff (or any other sex offenders for that matter) may reside or “loiter,” substantially intrude upon significant family matters involving private and personal choices about how to raise and care for children, and decision-making about where to reside. The Ordinance restricts Elwell, a low risk offender, from accompanying his children to the school bus stop, going into a school or to a public park with his children, for fear of being charged with “loitering” because he is a convicted sex offender. The rights affected are significant, and are unnecessarily burdened by the Ordinance.
Id. at *15.
It is well-settled that Michigan has a compelling interest in protecting minors from
violence and sexual abuse. (Dkt. # 90, Pg. ID 3767.) If the Michigan legislature
amends SORA to provide effective clarity to the loitering ban, perhaps the court could
find that the ban does not infringe on Plaintiffs’ associational rights and/or that the ban is
narrowly tailored to achieve a compelling state interest. However, SORA’s vagueness
leaves the court unable to determine to what extent SORA infringes on Plaintiffs’ right to
participate in the upbringing and education of their children, or whether SORA is
narrowly tailored to achieve that interest.
C. Count V: Violation of the First Amendment
In Count V, Plaintiffs allege that SORA’s “requirements to report information
about on-line accounts and activity is invalid under the First Amendment both on its face
and as applied because it is not narrowly tailored to serve a compelling state interest
and because it prohibits a substantial amount of protected speech.” (Dkt. # 46, Pg. ID
898.) Plaintiffs specifically challenge the constitutionality of two of SORA’s provisions,
Mich. Comp. Laws §§ 28.727(1)(I) and 28.726(1)(f). Section 28.727(1)(I) provides that
a registrant must report “[a]ll electronic mail addresses and instant message addresses
assigned to the individual or routinely used by the individual and all login names or other
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identifiers used by the individual when using any electronic mail address or instant messaging system.” Section 28.725(1)(f) requires registrants to “report in person and notify the registering authority . . . immediately after . . . [t]he individual establishes any electronic mail or instant message address, or any other designations used in internet communications or postings.”
Defendants argue that the registration and reporting requirements do not prevent Plaintiffs’ access to the Internet or regulate the content of their online speech. They maintain that the requirements “no more regulate[] speech than does the collection of other required information such as the offenders’ names, addresses, vehicle identification, or employer data.” (Dkt. # 97, Pg. ID 5746.)
The court denied Defendants’ motion to dismiss as it related to Count V, explaining that, “[w]ithout additional briefing and further information on the operation of the provisions, the court is unable to determine whether the provisions implicate registrants’ First Amendment rights.” (Dkt. # 27, Pg. ID 702.) The court expressed that the contention that SORA chills registrants’ speech “deserves more considered reflection” especially given that “at least one of the Plaintiffs refus[ed] to use the internet” in light of the reporting requirements. (Id. at 701 quoting Compl. ¶ 204 (“ [John Doe IV] does not use the Internet because he would be required . . . to register all email and Internet identifiers, and would need to report constantly in order to use different websites with different user-names.”).) Specifically, the court stated that “it is not at all clear to the court how the provisions interact with registrants’ ability to use the internet as a medium to engage in protected speech. Particularly of interest is what the State does with the information provided.” Id. Furthermore, the court noted that “additional
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information on the actual operation of the provisions is necessary to determine whether they are narrowly tailored.” (Id. at 701-02.)
The First Amendment, as applied to the states through the Fourteenth Amendment, protects individuals from laws abridging the freedom of their speech. U.S. Const. amend. I. The Supreme Court has extended the First Amendment’s free speech protections to the Internet. Reno v. ACLU, 521 U.S. 844, 870 (1997) (“[O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to [the Internet].”). Any law burdening the exercise of free speech “must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.” Broadrick v . Oklahoma, 413 U.S. 601, 611-12 (1973). “[T]he government may impose reasonable restrictions on the time, place, or manner of protected speech,” provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (internal quotation marks omitted). The Supreme Court clarified this standard, explaining:
A regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied “so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” Id. at 798-99 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). SORA’s Internet reporting provisions are content neutral in that they restrict
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speech without reference to the [speech’s] content.” Doe v. Prosecutor, Marion County, Indiana, 705 F.3d 694, 698 (2013); see Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 643 (1994) (“As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based. By contrast, laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content neutral.” (citations omitted)). Accordingly, applying the standard set forth in Ward, the court must determine whether the restrictions are (1) narrowly tailored, (2) to serve a significant government interest, while (3) leaving ample alternative channels for communicating information.
Both parties concede, and it is beyond cavil, that the state has a compelling interest in protecting minors from violence and sexual abuse. (Dkt. # 90, Pg. ID 3767.) The parties, however, vigorously dispute whether the Internet reporting provisions are narrowly tailored to achieve this interest.
Plaintiffs contend that SORA’s Internet provisions are not narrowly tailored because “they do nothing beyond what is accomplished by existing laws to protect minors from sexual crime” and note that “those [minor solicitation] laws did a much better job at narrowly targeting the behavior the state wanted to curtail” than SORA does.3 (Dkt. # 96, Pg. ID 5698.) See Mich. Comp. Laws § 750.145d (prohibiting the
3In arguing that SORA’s Internet provisions are not narrowly tailored, Plaintiffs cite to Doe v. Prosecutor, Marion County, Indiana, 705 F.3d 694 (7th Cir. 2013). In that case, the Seventh Circuit struck down an Indiana statute that prohibited most registered sex offenders from using social networking websites, instant messaging services, and chat programs. Id. at 695. The Seventh Circuit concluded that, although the statute was content neutral, they were not narrowly tailored to serve the state’s interest inasmuch as “[i]t broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors.” Id. However, the statute at
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solicitation of minors over the Internet). However, SORA does go beyond the existing laws and provides further protection of minors from sexual crimes in two ways. First, whereas § 750.145d prohibits the online solicitation of minors, SORA’s Internet provisions create a database of online identities of persons convicted of sex offenses which makes easier the investigation of crimes in which a minor (or adult) has been contacted through an online alias. Second, as the Department of Justice’s Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART”) aptly suggests, “knowledge that their Internet identifiers are known to the authorities may deter registered sex offenders from engaging in criminal behavior on the Internet.” (Dkt. # 90, Pg. ID 3877.) Plaintiffs note that law enforcement has yet to use the Sex Offender Registration database to search for registrants’ Internet information to solve a crime. (Dkt. # 96, Pg. ID 5698.) But this in no way affects whether SORA is narrowly tailored to achieve the state’s significant and compelling interest in protecting minors.
Next, Plaintiffs attack SORA’s Internet provisions on the ground that they unconstitutionally restrict Plaintiffs’ right to anonymous speech. (Dkt. # 96, Pg. ID 569899.) The Supreme Court has recognized that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” McIntyre v. Ohio Elections. Comm’n, 514 U.S. 334, 342 (1995). The First Amendment’s protection of anonymous speech extends to the Internet as well. See, e.g., Doe v.
issue in Marion County is distinguishable from SORA. Whereas the Indiana statute prohibited certain registrants from using social networking websites, SORA does not bar any speech on the Internet, but rather imposes reporting requirements.
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Harris, 772 F.3d 563, 574 (9th Cir. 2014); Doe v. Shurtleff, 628 F.3d 1217, 1222 (10th Cir. 2010); Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001) (“The right to speak anonymously extends to speech via the Internet.”). “[A]nonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible,” McIntyre, 514 U.S. at 341-42, and the Ninth Circuit has suggested that anonymity may be particularly important to sex offenders engaged in protected speech because it “provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.” Harris, 772 F.3d at 581 (quoting McIntyre, 514 U.S. at 342).
Two recent circuit court opinions provide helpful guidance in addressing Plaintiffs’ argument. See Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010) and Doe v. Harris, 772 F.3d 563 (9th Cir. 2014). The court ultimately concludes that requiring Plaintiffs to disclose their Internet designations to law enforcement does not unconstitutionally infringe on their right to anonymous speech. However, the requirement that Plaintiffs’ report new designations in person as well as the Internet provisions’ aforementioned vagueness render these provisions unconstitutionally overbroad.
In Shurtleff, the Tenth Circuit considered whether a Utah law requiring registered sex offenders to report their “internet identifiers” violated the First Amendment. 628 F.3d 1217. In holding that the law did not violate registrants’ First Amendment rights, the Tenth Circuit narrowly read the statute in order to dispel the registrant’s concerns that the public would have access to his reported information and that law enforcement would be unhindered from constant surveillance of his activities. To that end, the court
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“read th[e] statute as permitting sharing only among law-enforcement agencies, not the public at large, and only for [] recited law-enforcement purposes.” Id. at 1225. Likewise, in explaining its holding “that the statute includes sufficient restrictions so as not to unnecessarily chill [the registrant’s] speech,” the court read the statute “as only allowing state actors to look beyond the anonymity surrounding a username in the course of an investigation after a new crime has been committed.” Id. The Tenth Circuit also noted that, “[a]lthough there is a possibility that a government agent would have access to Doe's identity at the time he was speaking—as, for example, if an undercover [officer] sought him out in a chat room in the course of investigating a sex crime—we are not persuaded that this possibility imposes a constitutionally improper burden on speech.” Id.
Meanwhile, in Doe v. Harris, 772 F.3d 563 (9th Cir. 2014), the Ninth Circuit enjoined provisions of the Californians Against Sexual Exploitation Act, which required sex offenders to report “[a] list of any and all Internet identifiers established or used by the person” and “[a] list of any and all Internet service providers used by the person,” as well as requiring registrants to send written notice to law enforcement within 24 hours of any additions or changes to this information. Id at 567-68 (quoting Cal. Penal Code §§ 290.014(b), 290.015(a)(4), (5)). Applying intermediate scrutiny, the Ninth Circuit concluded that the Act “unnecessarily chills protected speech in at least three ways: the Act does not make clear what sex offenders are required to report, there are insufficient safeguards preventing the public release of the information sex offenders do report, and the 24-hour reporting requirement is onerous and overbroad.” Id. at 578.
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In particular, the Ninth Circuit found that “ambiguities in the statute may lead registered sex offenders either to overreport their activity or underuse the Internet to avoid the difficult questions in understanding what, precisely, they must report.” Id. at 579. “This uncertainty undermines the likelihood that the [Act] has been carefully tailored to the [State’s] goal of protecting minors.” Id. (quoting Reno, 521 U.S. at 871.). Second, the Ninth Circuit held that “the Act . . . chills anonymous speech because it too freely allows law enforcement to disclose sex offenders’ Internet identifying information to the public” because the Act provides that “any designated law enforcement entity may provide information to the public about a person required to register as a sex offender . . . when necessary to ensure the public safety based upon information available to the entity concerning that specific person.” Id. at 580 (quoting Cal. Penal Code § 290.45(1)(1)). The court noted that this provision “contains no standard for judging what is ‘necessary to ensure the public safety,’” and that, “[w]ithout such standard, the Act impermissibly ‘places unbridled discretion in the hands of a government official or agency.’” Id. (quoting City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988)). Thus, “registered sex offenders are unnecessarily deterred from engaging in anonymous online speech.” Id. at 581. Third, the Ninth Circuit found the twenty-four-hour update requirement to be a substantial and undeniable burden on First Amendment activities, explaining that “anytime registrants want to communicate with a new identifier, they must assess whether the message they intend to communicate is worth the hassle of filling out a form, purchasing stamps, and locating a post office or mailbox.” Id. at 582. The court further explained that “[t]he mail-in requirement is not only psychologically chilling, but physically inconvenient, since
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whenever a registered sex offender obtains a new ISP or Internet identifier, he must go
somewhere else within 24 hours to mail that information to the State.” Id.
While neither of these cases are controlling, they are instructive. Both courts
were concerned with who would have access to the reported information. In this regard,
SORA is more akin to the Utah legislation than the enjoined California statutes. Both
parties concede that “registrants’ internet identifiers are not made available to the
general public.” (Dkt. # 90, Pg. ID 3875.) SORA explicitly provides:
The following information shall not be made available on the public internet website . . . (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 any electronic mail address or instant messaging system.
Mich. Comp. Laws § 28.728(3).
Thus, SORA neither prohibits registrants from engaging in any particular speech
on the Internet, nor does it unmask registrants’ anonymity to the public. SORA does
unveil registrants’ anonymity to law enforcement; however, this does not, by itself,
infringe upon Plaintiffs’ First Amendment rights. In Laird v. Tatum, 408 U.S. 1 (1972)
the Supreme Court noted:
In recent years this Court has found in a number of cases that constitutional violations may arise from the deterrent, or ‘chilling,’ effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights. In none of these cases, however, did the chilling effect arise merely from the individual's knowledge that a governmental agency was engaged in certain activities or from the individual's concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and addition[a]l action detrimental to that individual. Rather, in each of these cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging.
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Id. at 11. The Sixth Circuit has construed Laird to stand for the proposition that, “to allege a
sufficient injury under the First Amendment, a plaintiff must establish that he or she is regulated, constrained, or compelled directly by the government's actions, instead of by his or her own subjective chill.” ACLU v. Nat’l Sec. Agency, 493 F.3d 644 (6th Cir. 2007). Here, given that registrants’ anonymity remains intact with regard to the public, any chilling effect caused by the limited removal of Plaintiffs’ anonymity would be caused by the sort of subjective fear of future government action discounted in Laird.
However, there are two aspects of SORA’s Internet reporting provisions that are particularly onerous on registrants and render the Internet reporting requirements unconstitutionally burdensome. First, just as ambiguity in the California statute contributed to its chilling effect on speech, so too does the ambiguity in SORA’s Internet reporting provisions discussed above. Ambiguity as to the meaning of “routinely used” would likely result in both overreporting and under use of permissible speech activities. It is uncertain whether a registrant would need to register her husband’s email account were she to occasionally respond to emails from his address. For example, if the registrant were to send holiday emails from her husband’s account in December, pay a bill using his email account in March, and then share photos with a family member from his email account in May, she would be left to determine whether such use was “routine.” Reasonable persons could either avoid using another person’s email account or report the account out of a sense of caution even though this usage may not appear to fall within the dictionary definition of routine. See supra Section III.A.1.iii. As with the California law, “[t]his uncertainty undermines the likelihood that the [Act] has been
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carefully tailored to the [State's] goal of protecting minors.” Harris, 772 F.3d at 579 (quoting Reno, 521 U.S. at 871).
More problematic is § 28.725(1)’s requirement that registrants report “in person” immediately (i.e., within three business days) whenever they establish “any electronic mail or instant message address, or any other designation used in internet communications or postings.” Mich. Comp. Laws § 28.725(1)(f). The requirement to report in person is surely more burdensome to registrants than the California law’s requirement to report new Internet identifiers by mail within twenty-four hours. In concluding that the “24-hour reporting requirement . . . undoubtedly chills First Amendment Activity,” the Ninth Circuit explained:
[A]nytime registrants want to communicate with a new identifier, they must assess whether the message they intend to communicate is worth the hassle of filling out a form, purchasing stamps, and locating a post office or mailbox. The mail-in requirement is not only psychologically chilling, but physically inconvenient, since whenever a registered sex offender obtains a new ISP or Internet identifier, he must go somewhere else within 24 hours to mail that information to the State. Harris at 581-82. This court need not—and does not—agree that putting a stamp on an envelope and walking it to one’s front door or roadside mailbox constitutes a notable “hassle,” let alone one that “undoubtedly chills” a person’s ability to freely speak. It remains, however, that SORA’s “in person” reporting requirement imposes a substantially greater, and apparently unnecessary, burden on protected First Amendment speech. Accordingly, while SORA’s Internet reporting provisions serve the significant governmental interest of protecting minors and investigating sexual crimes, the
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ambiguity in the reporting requirements and the requirement to report “in person” render the provisions not narrowly tailored and, therefore, unconstitutional.
D. Count VI: Retroactive Application of Lifetime Registration Requirement Plaintiffs claim that the 2011 SORA amendments’ imposition of retroactive
lifetime registration violates the Due Process Clause of the Fourteenth Amendment. (Dkt. # 46, Pg. ID 898-99; see Dkt. # 96, Pg. ID 5699-700 (“The due process question before this Court is not whether myriad amendments to SORA over the last 20 years can be applied retroactively, but rather whether one particular change—the imposition of retroactive lifetime registration—violates due process.”).) In their complaint, Plaintiffs specifically identify three manners in which the lifetime registration amendment contravenes the Due Process Clause: (1) the application of SORA to Doe #1 who was not required to register as a sex offender upon his conviction for kidnapping in 1990; (2) the application of SORA to Doe #2 who pleaded guilty in 1997 under the HYTA with the expectation that his case would be dismissed and his records sealed; and (3) the 2011 amendment’s retroactive extension of Doe #3’s, Doe #4’s, and Ms. Doe’s registration periods from twenty-five years to life “without any individualized showing that such an extension is warranted.” (Dkt. # 46, Pg. ID 898-99.)
The court held in its previous opinion that, “as a matter of law . . . , retroactively applying SORA to [Does ##1 and 2] is justified by a legitimate legislative purpose” and dismissed Count VI as it relates to the retroactive application of SORA to those Plaintiffs. (Dkt. # 27, Pg. ID 696.) However, the court found that, “at this early stage of the litigation, the court is unable to determine whether retroactively extending the registration period of Plaintiffs from twenty-five years to life is justified by a legitimate
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legislative purpose” and, accordingly, denied “Defendants’ motion as it applies to the extension of Plaintiffs’ registration periods.” (Id. at 697.) The court now considers this issue and concludes that the retroactive application of SORA’s lifetime registration requirement is constitutional.
1. Level of Scrutiny Generally, “[r]etroactivity is not favored in the law.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). As the Supreme Court explained in Landsgraf v. USI Film Prods., 511 U.S. 244 (1994), “[t]he Due Process Clause . . . protects the interests in fair notice and repose that may be compromised by retroactive legislation; a justification sufficient to validate a statute's prospective application under the Clause ‘may not suffice’ to warrant its retroactive application.” Id. at 266. Yet, “[i]n general, due process is satisfied ‘simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose.’” Franklin Cnty. Convention Facilities Auth. v. Am. Premier Underwriters, Inc., 240 F.3d 534, 550 (6th Cir. 2001) (quoting Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 730 (1984)). Whereas Franklin County involves an act that “adjust[s] the burdens and benefits of economic life,” id., Plaintiffs argue that the court should apply strict scrutiny rather than rational basis review because SORA burdens fundamental rights—namely Plaintiffs’ fundamental right to parenting and free speech rights. (Dkt. # 96, Pg. ID 5701.) It is well settled that “[g]overnment actions that burden the exercise of . . . fundamental rights or liberty interests are subject to strict scrutiny, and will be upheld only when they are narrowly tailored to a compelling governmental interest.” Seal v.
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Morgan, 229 F.3d 567, 574 (6th Cir. 2007). Defendants cite to no controlling precedent in which a court applied a heightened level of scrutiny for a law’s prospective application but then applied rational basis review to a law’s retrospective application.4 Instead, Defendants rely solely on the doctrine of the law of the case to argue that the court is obligated to apply rational basis review in determining whether the retroactive application of SORA’s lifetime registration violates due process. (Dkt. # 100, Pg. ID 5846 (citing Christianson v. Colts Indus. Operating Corp., 486 U.S. 800, 815-16 (1988) (“[T]he doctrine [of the law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” (citation omitted))).)
The court has not previously decided whether a heightened level of scrutiny or rational basis review applies to the determination of whether the 2011 Amendments’ retroactive extension of Doe #3’s, Doe #4’s, and Ms. Doe’s registration periods from twenty-five years to life violates the Due Process Clause. In denying Defendants’ motion to dismiss as to this claim, the court found that, “at this early stage of litigation, the court is unable to determine whether retroactively extending the registration period of Plaintiffs from twenty-five years to life is justified by a legitimate legislative purposes.” (Dkt. # 27, Pg. ID 697.) The court did not need to consider whether a heightened level of scrutiny applied because it found that the motion to dismiss standard was not met
4The District of Nebraska rejected a due process challenge to the retroactive application of Nebraska’s sex offender registration laws holding that retroactive application of the laws “is itself justified by a rational legislative purpose,” being public safety. Doe v. Nebraska, 734 F. Supp. 2d 882, 932 (D. Neb. 2010). But that court did not consider whether a heightened level of scrutiny was warranted for this determination.
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even applying rational basis review and because the parties did not litigate the proper standard of review. While it is true that the court granted the motion as to the retroactive application of SORA to Does ##1 and 2 on the ground that such application “is justified by a legitimate legislative purpose,” (Dkt. # 27, Pg. ID 696), this ruling is separate from the court’s analysis of the retroactive application to the other Plaintiffs, as evidenced by the court’s disparate dispositions of the claim as applied to Does ##1 and 2 and the other Plaintiffs. Moreover, in recognizing the doctrine of the law of the case, the Supreme Court made clear that, despite this doctrine, “[a] court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance.” Christianson, 486 U.S. at 817. Even if the doctrine applied here, in light of the fact that the standard of review was not litigated during the motion to dismiss phase, the court would find it appropriate to consider in the first instance whether a higher level of scrutiny was warranted.
As discussed above, SORA’s Internet reporting requirements implicate Plaintiffs’ First Amendment free speech right rights and, due to SORA’s vagueness, the court is unable to determine whether the prohibition against loitering and residing in the geographical exclusion zones infringe on a Plaintiffs’ fundamental right to participate in the upbringing and education of their children. For the reasons discussed in Sections III.B and III.C, the court will enjoin the geographic exclusion zone provisions and the majority of the Internet reporting provisions. The court, however, will not enjoin Mich. Comp. Laws § 28.727(1)(f) inasmuch as it requires registrants to report “[a]ll electronic mail addresses and instant message addresses assigned to the individual . . . and all login names or other identifiers used by the individual when using any electronic mail
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address or instant messaging system.” The retroactive application of the lifetime registration requirement implicates the First Amendment only to the extent that it incorporates this reporting requirement—thus retroactively extending the length of time that certain individuals must report their e-mail addresses, instant message addresses, and related information. The court will apply intermediate scrutiny in considering the lifetime registration requirement’s incorporation of this reporting requirement. In all other respects, the retroactive application of the lifetime registration requirement does not implicate Plaintiffs’ First Amendment rights or right to participate in the upbringing and education of their children.
Plaintiffs also contend that the retroactive application of SORA’s lifetime registration should be subject to higher scrutiny because it alters the terms of plea agreements. (Dkt. # 96, Pg. ID 5701-02 (citing Lynch v. United States, 292 U.S. 571, 579 (1934)).) Under this theory, plea agreements are government contracts, and breaches of governmental contracts implicate the Fifth Amendment’s Takings Clause. See Lynch, 292 U.S. at 579 (“Valid contracts are property, whether the obligor be a private individual, a municipality, a state, or the United States. Rights against the United States arising out of a contract with it are protected by the Fifth Amendment.”).
“Plea agreements are contractual in nature.” United States v. Robinson, 924 F.2d 612, 613 (6th Cir. 1991); see Puckett v. United States, 556 U.S. 129, 137 (2009) (“Although the analogy may not hold in all respects, plea bargains are essentially contracts.”). “Plea agreements involve a quid pro quo between a criminal defendant and the government. In exchange for some perceived benefit, defendants waive several of their constitutional rights (including the right to a trial) and grant the
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government numerous tangible benefits, such as promptly imposed punishment without the expenditure of prosecutorial resources.” INS v. St. Cyr, 533 U.S. 289, 321 (2001) (internal quotation marks and citations omitted). “When a defendant agrees to a plea bargain, the Government takes on certain obligations. If those obligations are not met, the defendant is entitled to seek a remedy.” Puckett, 556 U.S. at 137.
Plaintiffs argue that retroactively applying the lifetime registration requirement is unconstitutional because it offends fundamental fairness by altering a factor that may have affected Plaintiffs’ willingness to enter their plea agreements. (Dkt. # 96, Pg. ID 5703-05 (relying on St. Cyr, 533 U.S. at 323, in which the Supreme Court held that changes to immigration laws which repealed discretionary relief from deportation did not apply retroactively for a number of reasons, including the role such relief may have played in defendants’ plea bargaining).) However, Plaintiffs have not raised breach of contract or Fifth Amendment Takings claims, nor do they cite to any case law supporting a higher degree of scrutiny when reviewing the retroactive application of a law that may affect the government’s contractual obligations (including those established by plea agreements). Because Plaintiffs provide no basis for reviewing the retroactive application of SORA’s lifetime registration requirement using a heightened level of scrutiny—except as to the lifetime registration requirement’s incorporation of the Internet reporting provision—the court will uphold the general retroactive application of the legislation if it is justified by a rational legislative purpose.’” Franklin Cnty. Convention Facilities Auth., 240 F.3d at 550 (6th Cir. 2001) (quoting Pension Benefit Guar. Corp., 467 U.S. at 730).
2. Rational Legislative Purposes Justifying Retroactivity 60

Defendants proffer three governmental purposes for the retroactive application of SORA: to enhance public safety, to conform with federal law and avoid losing federal funding, and to create a uniform nation-wide sex offender registration system. (Dkt. # 97, Pg. ID 5738-41.) The retroactive application of the lifetime registration requirement is justified by all three purposes.
i. Public Safety Plaintiffs conceded that public safety is an “important interest,” and the Sixth Circuit has found that states have a compelling interest in protecting public safety. E.g., Grider v. Abramson, 180 F.3d 739, 749 (6th Cir. 1999); Tanks v. Greater Cleveland Reg. Transit Auth., 930 F.2d 475, 480 (6th Cir. 1991). Defendants argue that the retroactive application of the lifetime registration requirement helps achieve this goal because “the public safety concerns posed by sex offenders are much the same, regardless of when they were convicted.” (Dkt. # 97, Pg. ID 5741 (citation omitted).) Plaintiffs disagree, arguing that lifetime registration does not serve public safety but rather is a detriment to public safety. Although opinions about sex offender registries’ effects on public safety may differ (cf. Dkt. # 90, Pg. ID 3843), it was reasonable for the Michigan legislature to “determine[] that a person who has been convicted of committing an offense covered by this act poses a potential serious menace and danger to . . . the people, and particularly the children, of this state,” and SORA’s registration requirements would enhance public safety by “provid[ing] 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.” Mich. Comp. Laws § 28.721a. Just as providing the public and law enforcement with the means to monitor sex offenders
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who were convicted twenty years ago is rationally related to protecting public safety, so too is providing the public and law enforcement with the means to monitor sex offenders who were convicted thirty years ago, or more.
ii. Conform with Federal Law In enacting the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. §§ 16901 et seq., Congress hoped “to protect the public from sex offenders and offenders against children” by “establishing a comprehensive national system for the registration of those offenders.” 42 U.S.C. § 16901. “Rather than establishing a federal agency to implement SORNA, Congress, through its spending power, U.S. Const. Art. I, § 8, directed all states and the District of Columbia to create local registries that comply with specific national standards. 42 U.S.C. §§ 16911(10), 16912(a).” United States v. Felts, 674 F.3d 599, 602 (6th Cir. 2012). For Michigan to comply with SORNA and receive full funding under the Omnibus Crime Control and Safe Street Act of 1968, 42 U.S.C. §§ 3750 et. seq., Michigan must “substantially implement” SORNA. See 42 U.S.C. § 16925(a) (“For any fiscal year after the end of the period for implementation, a jurisdiction that fails, as determined by the Attorney General, to substantially implement this subchapter shall not receive 10 percent of the funds that would otherwise be allocated for that fiscal year to the jurisdiction under subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.).”). Retroactivity is one factor in determining substantial implementation. SORNA “appl[ies] to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of the Act,” 28 C.F.R. § 72.3, and the SMART office published a “Substantial Implementation Checklist” which lists
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retroactivity as one of the factors in determining substantial compliance. (Dkt. # 93-33, Pg. ID 5489.) Thus, even if the retroactive application of SORA’s lifetime registration requirement is not necessary for achieving substantial implementation of SORNA, it is undoubtedly justified by the goal of substantial implementation. In fact, the parties disclosed that “[t]he Substantial Implementation Review conducted by SMART indicated that Michigan’s retroactivity provisions substantially complied with SORNA.” (Dkt. # 90, Pg. ID 3787.)
Plaintiffs assert that the desire to conform with federal law does not provide a rational basis for the retroactive application of the lifetime registration requirement for because SORNA does not compel Michigan to implement SORNA. (Dkt. # 96, Pg. ID 5710 (citing Printz v. United States, 521 U.S. 898, 924 (1997) (“[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts . . . .”)).) This argument is unpersuasive. The Sixth Circuit has interpreted SORNA as a directive to states to comply with federal standards, and the desire to aid in achieving that goal is a rational justification for trying to achieve substantial implementation. Felts, 674 F.3d at 602. Likewise, failing to substantially comply with SORNA would result in lost federal funding. Plaintiffs claim that the lost funding cannot justify retroactivity because the cost of substantially implementing SORNA exceeds the lost federal funding. The parties estimate that Michigan would lose about $1 to $2 million a year in federal funding if Michigan is not substantially compliant with SORNA.
Plaintiffs argue that the cost of SORNA compliance significantly outweighs the potential loss in federal funding. (Dkt. # 96, Pg. ID 5711-12.) This is not an easy
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calculation, in part because Michigan obtains other benefits from implementing a sex offender registry besides the federal funding, including enhanced public safety. This is evident because Michigan had enacted its offender registry before SORNA. Defendants urge the court that “[t]he only costs that can reasonably be considered costs of ‘SORNA compliance’ are the . . . costs of the OffenderWatch software, which amount to only $260,000 for annual maintenance and support.” (Dkt. # 100, Pg. ID 5850.) Defendants’ suggestion is both overinclusive and underinclusive for the purposes of determining whether federal funding is a rational justification for applying the lifetime registration requirement retroactively. It is overinclusive in that major portions of the cost of the OffenderWatch software are unattributable to the retroactive application of the lifetime registration requirement. It is underinclusive because it does not include the cost of training and other personnel costs related to implementing SORNA. Yet, Michigan presumably would need to invest in substantially the same amount of overhead and training whether SORA’s lifetime registration requirement applies retroactively or merely prospectively. The court cannot determine the specific cost of applying the lifetime registration requirement retroactively, but it seems highly likely that it amounts to less than $1 to $2 million dollars per year. Increasing the likelihood of receiving full funding under the Omnibus Crime Control and Safe Street Act of 1968 is a rational legislative purpose justifying the retroactive application of the lifetime registration requirement.
iii. Contributing to National Uniformity of Sex Registration Laws The desire to contribute to the goal of national uniformity of sex registration laws is a legitimate government purpose, too. Congress enacted SORNA specifically to
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“establish[] a comprehensive national system for the registration of [sex] offenders,” 42 U.S.C. § 16901 out of an “awareness that pre-Act registration law consisted of a patchwork of federal and 50 individual state registration systems.” Reynolds v. United States, 132 S. Ct. 975, 978 (2012). Uniformity across jurisdictions can enhance public safety and reduce the burden on registrants by making it easier for registrants (and the public) to be aware of the reporting requirements in any given jurisdiction. The retroactive application of the lifetime registration requirement helps further the goal of uniformity. Seventeen states, three territories, and sixty-one tribes substantially complied with SORNA as of July 2014. (Dkt. # 90, Pg. ID 3776.) Although this falls short of uniformity, the substantial number of jurisdictions that have complied contribute to fair notice and enhanced public safety by normalizing reporting requirements.5
In sum, the court finds that the retroactive application of SORA’s lifetime registration requirement is justified by rational government purposes and is therefore constitutional. The court, however, reiterates that this finding does not apply to those SORA provisions which the court finds constitutionally infirm.
3. The Lifetime Registration Requirement’s Incorporation of the Internet Reporting Provision
By applying the lifetime registration requirement retroactively, SORA also extends its Internet reporting requirement retroactively. The requirement to report “[a]ll
5Plaintiffs note that some aspects of SORA are not directly consistent with SORNA and therefore cannot contribute to national uniformity. (Dkt. # 99, Pg. ID 5812.) Not all of Michigan’s policy decisions must be related to achieving every one of its goals; this is impossible wherever goals conflict. The retroactive application of SORA may be justified by the goal of national uniformity even though some of SORA’s provisions do not contribute to uniformity.
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electronic mail addresses and instant message addresses assigned to the individual . . . and all login names or other identifiers used by the individual when using any electronic mail address or instant messaging system” has a minimal impact on Plaintiffs’ First Amendment rights. Because of this minimal impact, the court must consider whether the reporting requirement’s retroactive application, due to its incorporation through the retroactive lifetime registration requirement, is narrowly tailored to serve a significant government interest, while leaving ample alternative channels for communicating information. Ward, 491 U.S. at 791.
As discussed supra in Section III.C, the reporting requirement is content-neutral, it does not prohibit any protected speech, and it does not interrupt Plaintiffs’ right to anonymous speech by unveiling their identities to the public. Its impact on Plaintiffs’ free speech rights is minimal, and Michigan has a robust interest in protecting the individuals, especially children, from online predators. Nonetheless, Defendants have not briefed whether the retroactive application of the Internet reporting provision, through its incorporation in the lifetime registration requirement, survives intermediate scrutiny. Additional briefing would be helpful in resolving this issue. The court will reserve ruling on this question.
E. Count IX: Violation of the Ex Post Facto Clause Plaintiffs assert that the November 2013 amendment to SORA instituting a requirement that registrants pay a $50.00 annual registration fee violates Article I, Section 9, Clause 3 of the Constitution of the United States, which states, “No Bill of Attainder or ex post facto Law shall be passed.” Mich. Comp. Laws § 28.725a(6) (eff. Apr. 1, 2014).
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Before determining whether the annual registration fee violates the Ex Post Facto Clause, the court must determine whether its review of this claim is barred by the Tax Injunction Act, 28 U.S.C. § 1341. The Tax Injunction Act provides: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C. § 1341.
The purpose of the Tax Injunction Act is “to promote comity and to afford states the broadest independence, consistent with the federal constitution, in the administration of their affairs, particularly revenue raising.” Wright v. McClain, 835 F.2d 143, 144 (6th Cir. 1987). “It is elemental . . . that the label given an assessment by state law is not dispositive of whether the assessment is a ‘tax under state law.’ Rather, the definition of the term ‘tax’ is a question of federal law, and the issue here is whether the assessment is a tax within the meaning of that term as employed by Congress in the Tax Injunction Act.” Hedgepeth v. Tennessee, 215 F.3d 608, 612 (6th Cir. 2000) (quoting Wright, 835 F.2d at 144). To determine whether an assessment constitutes a tax, courts utilize a three-factor test: “(1) the entity that imposes the assessment; (2) the parties upon whom the assessment is imposed; and (3) whether the assessment is expended for general public purposes, or used for the regulation or benefit of the parties upon whom the assessment is imposed.” Id. at 612 (quoting Am. Landfill, Inc. v. Stark/Tuscarawas/Wayne Joint Solid Waste Mgmt. Dist., 166 F.3d 835, 837 (6th Cir. 1999)). If “the assessment falls near the middle of the spectrum between a regulatory fee and a classic tax, the predominant factor is the revenue’s ultimate use. When the ultimate use is to provide a general public benefit, the assessment is likely a tax, while
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an assessment that provides a more narrow benefit to the regulated [entities] is likely a fee.” Id. (quoting Am. Landfill, 166 F.3d at 838). “Fees can serve regulatory purposes as distinguished from general public purposes in two ways: either by discouraging particular conduct through the device of making it more costly, or by generating income ear marked to cover the cost of the regulation.” Id.
Plaintiffs argue that, although the first factor suggests that the registration fee is a tax because it was imposed by the Michigan legislature, the latter two factors support the alternate conclusion. The registration fee is imposed exclusively on registrants, and, pursuant to SORA, 60% of the fee goes to the Michigan State Police to be deposited in the sex offenders registration fund and the other 40% is “retained by the court, local law enforcement agency, sheriff’s department, or departmental post.” Mich. Comp. Laws. § 28.725b. The money credited to the fund may only be used for training and law enforcement purposes related to SORA. Mich. Comp. Laws § 28.725b. In sum. Plaintiffs insist that the fee is not a tax because:
It is imposed only upon a tiny fraction of the state’s population; the clear purpose is to help defray the agency’s regulation-related expenses; the charge discourages particular conduct or makes it more expensive; the bulk of the money is segregated in a specially created account; none of the money is paid to general state funds unrelated to SORA’s added costs; and unused SOR funds cannot lapse to the general fund. (Dkt. # 99, Pg. ID 5838.) Plaintiffs’ argument is supported by Mueller v. Raemisch, 740 F.3d 1128 (7th Cir. 2014), in which the Seventh Circuit considered an ex post facto challenge against the annual registration fee for Wisconsin’s sex offender registry. Without explicitly addressing the Tax Injunction Act, the Seventh Circuit noted that the
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parties “acknowledged in this case that if the $100 annual fee is not a bona fide fee, it is
a fine rather than a tax.” Id. at 1133.
Sixth Circuit precedent, however, precludes the court from categorizing the
annual registration fee as anything but a tax. In Wright, the Sixth Circuit considered
whether a Tennessee law requiring parolees to make monthly payments to a
supervision fund and a victim’s compensation fund imposed a tax within the meaning of
the Tax Injunction Act. 835 F.2d 143. The Sixth Circuit concluded that the charges
were taxes, reasoning that:
Although the levies imposed under the statute are earmarked for the Corrections Department budget and not the general fund, they are no less for revenue raising purposes as distinguished from license or privilege fees, or punitive assessments. The purposes of the charges are to defray the cost to the general public of monitoring and supervising the behavior of convicted offenders and to compensate, in some measure, victims of criminal misconduct. Those purposes relate directly to the general welfare of the citizens of Tennessee and the assessments to fund them are no less general revenue raising levies simply because they are dedicated to a particular aspect of the commonwealth.
Id. at 145.
Similarly, although the annual registration fee is earmarked for the administration
of SORA, SORA is hardly a privilege that registrants pay for their own benefit. Instead,
the registration fee was implemented to “offset the loss of grant funding and other
budget shortfalls” (Dkt. # 96, Pg. ID 5715) and fund the administration of SORA which
serves the general welfare by protecting the general population from future sex crimes.
Mich. Comp. Laws § 28.721a.
Plaintiffs ask the court to disregard Wright because it was decided before the
Sixth Circuit adopted the three-part test articulated in Hedgepeth and American Landfill.
69

(Dkt. # 99, Pg. ID 5836.) Under Plaintiff’s theory, SORA’s annual registration fee is not a tax because, although the purpose of SORA’s annual registration fee is to serve the general welfare by administering SORA, “the assessment is . . . used for the regulation . . . of the parties upon whom the assessment is imposed.” Hedgepeth, 215 F.3d 608, 612 (emphasis added). Nevertheless, this reasoning conflicts with Wright, and “[i]t is firmly established that one panel of [the Sixth Circuit] cannot overturn a decision of another panel; only the court sitting en banc can overturn such a decision.” United States v. Lanier, 201 F.3d 842, 846 (6th Cir. 2000).
Wright is directly on point; the purpose of the $50 registration fee is “to defray the cost to the general public of monitoring and supervising the behavior of [sex] offenders.” and to compensate, in some measure, victims of criminal misconduct. Wright, 835 F.2d at 145. The Sixth Circuit has not overturned Wright; in fact, both Hedgepeth and American Landfill rely on Wright to hold that the assessments at issue are taxes under the Tax Injunction Act. See Hedgepeth, 215 F.3d at 613 (“The State's assessments are allocated in a manner that make it clear the ultimate purpose of the assessments is to benefit the general public of the State of Tennessee. As such, the assessment must constitute a tax under the [Tax Injunction Act]. The State’s highway fund, the general fund, the police pay supplement fund, and the trooper safety fund ‘relate directly to the general welfare of the citizens of Tennessee and the assessments to fund them are no less general revenue raising levies simply because they are dedicated to a particular aspect of the commonwealth.’ Wright, 835 F.2d at 145.”) (internal quotation mark omitted); Am. Landfill, 166 F.3d at 839 (“Analyzing the assessments in question in this case under the case law above leads to the conclusion that the assessments are
70

‘taxes.’ Under Wright v. McClain . . . , the assessments are placed in a fund that, while separate from the general fund, serves public purposes benefitting the entire community.”). Therefore, to the extent that Wright conflicts with later Sixth Circuit case law, Wright controls and dictates that the court treat the registration fees as a tax rather than a privilege fee. Because the annual registration fee constitutes a tax for the purposes of the Tax Injunction Act, the court does not have jurisdiction to decide whether Mich. Comp. Laws § 28.725a(6) violates the Ex Post Facto Clause.
IV. CONCLUSION For the reasons stated above, IT IS ORDERED that Plaintiffs’ Rule 52 Motion for Judgment on the Papers (Dkt. # 96) is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that Defendants’ Rule 52 Motion for Judgment on the Papers (Dkt. # 97) is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that the Sex Offender Registration Act, Mich. Comp. Laws §§ 28.721 et seq., shall be construed consistently with this opinion. IT IS FURTHER ORDERED that SORA’s geographic exclusion zones provisions, Mich. Comp. Laws §§ 28.734, 28.735, are declared unconstitutional and their enforcement is enjoined, as applied to Plaintiffs. IT IS FURTHER ORDERED that the requirement “to report in person and notify the registering authority . . . immediately after . . . [t]he individual . . . begins to regularly operate any vehicle,” Mich. Comp. Laws § 28.725(1)(g), is declared unconstitutional and its enforcement is enjoined, as applied to Plaintiffs.
71

IT IS FURTHER ORDERED that the requirement “to report in person and notify the registering authority . . . immediately after . . . [t]he individual establishes any electronic mail or instant message address, or any other designations used in internet communications or postings,” Mich. Comp. Laws § 28.725(1)(f), is declared unconstitutional and its enforcement is enjoined.
IT IS FURTHER ORDERED that the requirement to report “[a]ll telephone numbers . . . routinely used by the individual,” Mich. Comp. Laws § 28.727(1)(h), is declared unconstitutional and its enforcement is enjoined.
IT IS FURTHER ORDERED that the requirement to report “[a]ll electronic mail addresses and instant message addresses . . . routinely used by the individual,” Mich. Comp. Laws § 28.727(1)(I), is declared unconstitutional and its enforcement is enjoined.
IT IS FURTHER ORDERED that the requirement to report “[t]he license plate number, registration number, and description of any motor vehicle, aircraft, or vessel . . . regularly operated by the individual,” Mich. Comp. Laws § 28.727(1)(j), is declared unconstitutional and its enforcement is enjoined, as applied to Plaintiffs.
IT IS FURTHER ORDERED that the court reserves judgment on whether Mich. Comp. Laws § 28.725a(7) is unconstitutional as applied to John Doe #4 and will request additional briefing in a forthcoming order.
IT IS FURTHER ORDERED that the court reserves judgment on whether it is constitutional for the lifetime registration requirement’s incorporation of the requirement to report “[a]ll electronic mail addresses and instant message addresses assigned to the individual . . . and all login names or other identifiers used by the individual when using any electronic mail address or instant messaging system,” Mich. Comp. Laws §
72

28.727(1)(i), to be applied retroactively and will request additional briefing in a forthcoming order.
IT IS FURTHER ORDERED that the court reserves judgment on Plaintiffs’ request for costs and attorneys’ fees pursuant to 42 U.S.C. § 1988 and Mich. Const. Art. 9, § 32, pending the resolution of the remaining issues in this case.
IT IS FURTHER ORDERED that judgment is entered in Defendants favor in all other respects.

Dated: March 31, 2015

s/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, March 31, 2015, by electronic and/or ordinary mail.

s/M. Beauchemin Deputy Clerk (313) 234-5525

73

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOES #1-5 and MARY DOE,

Plaintiffs,

v.

Case No. 12-11194

RICHARD SNYDER and COL. KRISTE ETUE,

Defendants. /

NOTICE OF MOTION HEARING

Plaintiffs John Does #1-5 and Mary Doe filed a nine count First Amended

Complaint challenging the constitutionality of the Michigan’s Sex Offenders Registration

Act (“SORA”), as amended in 2011 and 2013. (Dkt. # 46, Pg. ID 840.) Both parties

filed Rule 52 motions for judgment on the stipulated facts and records submitted by the

parties. (See Dkt. ## 90-95). The court resolved the majority of Plaintiffs’ claims in the

March 28, 2013 Opinion and Order Granting in Part and Denying in Part Defendants’

Amended Motion to Dismiss (Dkt. # 27, Pg. ID 669) and the March 31, 2015 Opinion

and Order Resolving Motions for Judgment (Dkt. # 103, Pg. ID 5875). In the latter

opinion, the court reserved judgment on two issues raised by Plaintiffs: (1) whether

Mich. Comp. Laws § 28.725a(7) is unconstitutional as applied to John Doe #4 and (2)

whether it is constitutional for the lifetime registration requirement’s incorporation of the

requirement to report “[a]ll electronic mail addresses and instant message addresses

assigned to the individual . . . and all login names or other identifiers used by the

individual when using any electronic mail address or instant messaging system,” Mich.

Comp. Laws § 28.727(1)(i), to be applied retroactively. (Dkt. # 103, Pg. ID 5946.) The
court requested additional briefing on both issues, which the parties provided on April
20, 2015. (Dkt. ## 104, 106, 107.) After reviewing the record, the court has determined
that a hearing is necessary to resolve these issues.
I. The Constitutionality of Mich. Comp. Laws § 28.725a(7) as Applied to Mr. Doe #4
Mich. Comp. Laws § 28.725a(7) provides:
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 an official state personal identification card issued under 1972 PA 222, MCL 28.291 to 28.300, with the individual’s current address. The license or card may be used as proof of domicile or residence under this section. In addition, the officer or authorized employee may require the individual to produce another document bearing his or her name and address, including, but not limited to, voter registration or a utility or other bill. The department may specify other satisfactory proof of domicile or residence.
Plaintiffs contend that § 28.725a(7) violates the Due Process Clause because
Mr. Doe #4 “is automatically and unpreventably in violation” of SORA inasmuch as “he
is homeless [and] cannot update his driver’s license to match his registration address
(which is ‘homeless’).” (Dkt. # 96, Pg. ID 5692.) In the Joint Statement of Facts, the
parties stipulated:
Since becoming homeless Mr. Doe #4 has been unable to comply with the SORA requirement that he maintain a driver’s license or personal identification that matches the address he uses to register for SORA. The Secretary of State will not issue identification with ‘homeless’ as an address. Mr. Doe #4, who is registered under SORA as homeless, cannot get a driver’s license that matches his registration information.
(Dkt. # 90, Pg. ID 3939.)
The requirement that the address listed on a registrant’s Michigan identification
card match the address he uses to register for SORA is not immediately apparent from
2

a plain reading of § 28.725(a)(7); nonetheless, “Defendants admit that registrants are
strictly liable if they do not have a driver’s license or personal identification card that
matches their registry address . . . .” (Id.) Similarly, the parties provided an excerpt of
Michigan State Police Official Order 79, dated April 27, 2007, which also appears to
require that the address listed on the Michigan identification card and the address used
to register with SORA are the same:
G. If the offender is homeless, the generic address of ‘123 Homeless’ shall be entered into the computerized database, along with the offender’s city, state, zip code, and country code. . . .
5. . . . B. The address on the SOR record must match the address on the Michigan driver license or Personal Identification Card. If the address does not match, the member shall give the offender the opportunity to immediately visit the nearest Secretary of State branch office for the necessary address change and return to the post to verify their address before taking enforcement action.
(Dkt. # 91-23, Pg. ID 4911.)1
At the hearing, the parties should be prepared to discuss whether the address
listed on the Michigan identification card and the address used to register with SORA
must match.
Additionally, Defendants suggest that Mr. Doe #4 is able to obtain a Michigan
identification card by “provid[ing] a letter from a homeless shelter reflecting he is
homeless and using the shelter’s services,” and that Mr. Doe #4 may physically receive
1The court infers from the docketed excerpt of Order 79 that paragraph “G” is a subsection of Section 4; however, the beginning of Section 4 is not included in the excerpt. The court requests that, prior to the June 9, 2015 hearing, the parties provide the court with a full version of Order 79.
3

an identification card—which is sent by the Secretary of State through the United States Postal Service—by providing a post office box or a family member’s or friend’s address as a mailing address. (Dkt. # 107, Pg. ID 5973-74.) Defendants, however, do not point to anything in the record showing that Mr. Doe #4 utilizes a shelter’s services or has a post office box or alternative mailing address at which to receive mail from the Secretary of State. At the hearing, the parties should be prepared to discuss whether it is possible for Doe #4 to obtain a Michigan identification card through the means suggested by Defendant or by some other means. II. THE RETROACTIVE APPLICATION OF THE INTERNET REPORTING PROVISION
In the Opinion and Order Resolving Motions for Judgment, the court considered whether the 2011 SORA amendments’ retroactive extension of Doe #3’s, Doe #4’s, and Ms. Doe’s registration period from twenty-five years to life violated the Due Process Clause of the Fourteenth Amendment. (Dkt. # 103, Pg. ID 5929-40.) The court held that, in general, the retroactive application of SORA’s lifetime registration requirement is constitutional; however, the court noted that this finding does not apply to the provisions of SORA which the court found constitutionally infirm. (Dkt. # 103, Pg. ID 5939.) The court also reserved judgment on the constitutionality of the retroactive application of SORA’s Internet reporting provision, through its incorporation in the lifetime registration requirement. (Id. at 5940.) The Internet reporting provision requires registrants to report “[a]ll electronic mail addresses and instant message addresses assigned to the individual . . . and all login names or other identifiers used by the individual when using
4

any electronic mail address or instant messaging system.”2 Mich. Comp. Laws

§

28.727(1)(i).

The First Amendment, as applied to the states through the Fourteenth

Amendment, protects individuals from laws abridging the freedom of their speech. The

Supreme Court has expressed that “the government may impose reasonable

restrictions on the time, place, or manner of protected speech, provided the restrictions

are justified without reference to the content of the regulated speech, that they are

narrowly tailored to serve a significant governmental interest, and that they leave open

ample alternative channels for communication of the information.” Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989) (internal quotation marks omitted). The

Court further clarified:

A regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. So long as the means chosen are not substantially broader than necessary to achieve the government’s interest, however, the regulation will not be invalid simply because a court concludes that the

2Section 28.727(1)(i) also requires registrants to report “[a]ll electronic mail addresses and instant message addresses . . . routinely used by the individual.” The court declared this requirement unconstitutional and enjoined its enforcement in the Opinion and Order Resolving Motions for Judgment and, therefore, need not consider whether its retroactive application comports with the Due Process Clause. (Dkt. # 103, Pg. ID 5946.)
5

government’s interest could be adequately served by some less-speech-restrictive alternative. Id. at 798-800 (internal quotation marks and citations omitted). The court also recognizes that, in general, “[r]etroactivity is not favored in the law,” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988), and that “a justification sufficient to validate a statute's prospective application under the Clause ‘may not suffice’ to warrant its retroactive application.” Landsgraf v. USI Film Prods., 511 U.S. 244, 266 (1994). The court previously found that Michigan has “a compelling interest in protecting minors from violence and sexual abuse” and “a robust interest in protecting the individuals, especially children, from online predators.” (Dkt. # 103, Pg. ID 5921, 5940.). The parties now dispute whether retroactively requiring certain registrants to comply with the Internet reporting requirements for life, rather than for twenty-five years, is narrowly tailored to those government interests and leaves alternative channels for communication. Both parties should be prepared to address the arguments raised in the supplemental briefs related to whether the retroactive application of the lifetime Internet reporting requirements is narrowly tailored. In particular, the parties should be prepared to discuss Plaintiffs’ contentions that: Defendants have failed to explain how lengthening the reporting requirements from twenty-five years to life will deter crime or otherwise protect the public from online predators; “it is more likely that a non-registrant will commit an ‘out of the blue’ sex offense than that even the highest-risk offender will commit such a crime after 15 years, let alone 25 years;” “[l]ifetime reporting illogically
6

demands that registrants report their speech when they are least likely to commit a

crime;” due to “the collection of huge amounts of indiscriminate data, the requirement

will make it more difficult—not easier—for law enforcement to focus on individuals who

truly pose an on-line threat;” and “the retroactive reporting requirement is not narrowly

tailored because it applies to all registrants, including registrants whose offenses did not

involve computers.” (Dkt. # 106, Pg. ID 5961-63.) Similarly, the parties should be

prepared to discuss, in particular, Defendants’ contentions that: applying the lifetime

Internet reporting requirements retroactively is narrowly tailored because the reported

information is only available to law enforcement; the reporting requirements do not

prohibit any speech; and, without retroactive lifetime application of the reporting

requirements, Michigan’s database, other States’ databases, and/or the National

Registry would be “render[ed] . . . less effective.” (Dkt. # 107-5977-78.)

IT IS ORDERED that a motion hearing is scheduled for June 9, 2015 at 3:00

PM. Dated: May 8, 2015

s/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, May 8, 2015, by electronic and/or ordinary mail.

s/Lisa G. Wagner Case Manager and Deputy Clerk (313) 234-5522

S:\Cleland\JUDGE'S DESK\C1 ORDERS\12-11194.DOES.hearing notice.dmi.wpd
7

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE #1-5 and MARY DOE,

Plaintiffs,

v.

Case No. 12-11194

RICHARD SNYDER and COL. KRISTE ETUE,

Defendants. /

OPINION AND ORDER RESOLVING OUTSTANDING ISSUES RAISED IN PLAINTIFFS’ AND DEFENDANTS’ MOTIONS FOR JUDGMENT

Plaintiffs John Doe #1-5 and Mary Doe filed a nine count First Amended

Complaint challenging the constitutionality of the Michigan’s Sex Offenders Registration

Act (“SORA”), as amended in 2011 and 2013. (Dkt. # 46, Pg. ID 840.) Both parties

filed Rule 52 motions for judgment on the stipulated facts and records submitted by the

parties. (See Dkt. ## 90-95). The court resolved the majority of Plaintiffs’ claims in the

March 28, 2013 Opinion and Order Granting in Part and Denying in Part Defendants’

Amended Motion to Dismiss (Dkt. # 27, Pg. ID 669) and the March 31, 2015 Opinion

and Order Resolving Motions for Judgment (Dkt. # 103, Pg. ID 5875). In the latter

opinion, the court reserved judgment on two issues raised by Plaintiffs: (1) whether

Mich. Comp. Laws § 28.725a(7) is unconstitutional as applied to John Doe #4 and (2)

whether it is constitutional for the lifetime registration requirement’s incorporation of the

requirement to report “[a]ll electronic mail addresses and instant message addresses

assigned to the individual . . . and all login names or other identifiers used by the

individual when using any electronic mail address or instant messaging system,” Mich.

Comp. Laws § 28.727(1)(i), to be applied retroactively. (Dkt. # 103, Pg. ID 5946.) The court requested additional briefing on both issues, which the parties provided on April 20, 2015. (Dkt. ## 104, 106, 107.) The court held a hearing on the remaining issues on June 11, 2015. For the reasons stated on the record and discussed below, the court finds that (1) Mich. Comp. Laws § 28.725a(7) is unconstitutional as applied to Doe #4 and (2) it is unconstitutional for the lifetime registration requirement’s incorporation of the Internet reporting requirement to be applied retroactively. I. The Constitutionality of Mich. Comp. Laws § 28.725a(7) as Applied to Mr. Doe #4
A. Standard The Fourteenth Amendment of the Constitution of the United States provides that no state “shall deprive any person of life, liberty, or property, without due process of law.” Const. amend. XIV. Holding an individual criminally liable for failing to comply with a duty imposed by statue, with which it is legally impossible to comply, deprives that person of his due process rights. Cf. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) (“[W]e assume that man is free to steer between lawful and unlawful conduct, [and, therefore,] we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.); United States v. Mise, 240 F.3d 527, 530 (considering and rejecting a due process impossibility challenge to a statute requiring the defendant to register a pipe bomb on the ground that the defendant did not present evidence that registration was legally impossible); United States v. Felts, 674 F.3d 599, 605 (6th Cir. 2012) (choosing not to address a due process impossibility attack on the Sex Offender Registration Notification Act, 42 U.S.C. § 16901 et seq., because “[the defendant] cites no specific
2

inconsistencies between Tennessee law and SORNA that would have rendered it
“impossible for [him] to comply with SORNA in Tennessee”). Similarly, a “pure status
crime” which does not require any conduct in order to impose punishment but rather
penalizes a person for his “mere status” is unconstitutional. See Powell v. State of Tex.,
392 U.S. 514, 542 (1968); Robinson v. State of Cal., 370 U.S. 660, 667 (1962) (holding
that “a state law which imprisons a person thus afflicted as a criminal, even though he
has never touched any narcotic drug within the State or been guilty of any irregular
behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth
Amendment”).
B. Discussion
Mich. Comp. Laws § 28.725a(7) provides:
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 an official state personal identification card issued under 1972 PA 222, MCL 28.291 to 28.300, with the individual’s current address.[1] The license or card may be used as proof of domicile or residence under this section. In addition, the officer or authorized employee may require the individual to produce another document bearing his or her name and address, including, but not limited to, voter registration or a utility or other bill. The department may specify other satisfactory proof of domicile or residence.
An individual who fails to comply with the requirement to maintain a state
identification card “is guilty of a misdemeanor punishable by imprisonment for not more
than 2 years or a fine of not more than $2,000.00, or both.” Mich. Comp. Laws
§ 28.729(2). Plaintiffs contend that § 28.725a(7) violates the Due Process Clause
1This opinion uses the term “state identification card” to refer to valid operator’s licenses, valid chauffeur’s licenses, and official state personal identification cards, collectively.
3

because Doe #4 “is automatically and unpreventably in violation” of SORA inasmuch as “he is homeless [and] cannot update his driver’s license to match his registration address (which is ‘homeless’).” (Dkt. # 96, Pg. ID 5692.) The court agrees.
Based on the record before the court, it appears that it is impossible for a homeless person who does not utilize the services of a homeless shelter, agency, or some other organization, to obtain a state identification card. In fact, the parties stipulated that:
Since becoming homeless Mr. Doe #4 has been unable to comply with the SORA requirement that he maintain a driver’s license or personal identification that matches the address he uses to register for SORA. The Secretary of State will not issue identification with ‘homeless’ as an address. (Dkt. # 90, Pg. ID 3939.) Defendants concede that an applicant must establish proof of residence in order to obtain a state identification card. (Dkt. # 107, Pg. ID 5972.) See Mich. Comp. Laws § 28.291(1). The Michigan Secretary of State requires that applicants for a state identification card present at least two documents displaying their name and Michigan residence’s address in order to establish proof of Michigan residence. (Dkt. # 107-2.) Nothing in the record suggests that Doe #4 utilizes the services of a homeless shelter, agency, or other organization. He does not have an address, and, accordingly, cannot provide the necessary documentation to obtain a state identification card. The court refrains from construing § 28.725a(7) to compel homeless persons to utilize the services of a shelter, agency, or other organization. Courts “ordinarily resist reading words or elements into a statute that do not appear on its face.” Elonis v. United States, 135 S. Ct. 2001, 2014-15 (2015) (internal quotation marks omitted).
4

When construing a statute more narrowly than its plan meaning, courts attempt to do

“‘the least damage’ to the statute” possible. United States v. Coatoam, 245 F.3d 553,

58 (6th Cir. 2001). Construing a statutory provision that requires registrants to maintain

a state identification card to compel homeless registrants to associate with a shelter,

agency, or other organization would do far greater harm to the plain meaning of

§

28.725a(7) than finding the identification card requirement inapplicable to homeless

persons who are without a valid address. Such a construction would introduce an

intrusive burden on homeless registrants that is not reflected in the plain meaning of the

statute.2

The court, therefore, finds that § 28.725a(7) violates the Due Process Clause as

applied to Doe #4 because it is impossible for Doe #4 to comply with the statute.

II. THE RETROACTIVE APPLICATION OF THE INTERNET REPORTING PROVISION

A. Standard

The First Amendment, as applied to the states through the Fourteenth

Amendment, protects individuals from laws abridging the freedom of their speech. The

Supreme Court has expressed that “the government may impose reasonable

restrictions on the time, place, or manner of protected speech, provided the restrictions

are justified without reference to the content of the regulated speech, that they are

narrowly tailored to serve a significant governmental interest, and that they leave open

ample alternative channels for communication of the information.” Ward v. Rock

2Furthermore, the record does not establish whether there would be a shelter, agency, or organization available to Doe #4 were he to attempt to utilize such services.
5

Against Racism, 491 U.S. 781, 791 (1989) (internal quotation marks omitted). The
Court further clarified that
. . . a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. So long as the means chosen are not substantially broader than necessary to achieve the government’s interest, however, the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.
Id. at 798-800 (internal quotation marks and citations omitted).
The court also recognizes that, in general, “[r]etroactivity is not favored in the
law,” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988), and that “a
justification sufficient to validate a statute's prospective application under the [Due
Process] Clause ‘may not suffice’ to warrant its retroactive application.” Landsgraf v.
USI Film Prods., 511 U.S. 244, 266 (1994).
B. Discussion
In the Opinion and Order Resolving Motions for Judgment, dated March 31,
2015, the court considered whether the 2011 SORA amendments’ retroactive extension
of Doe #3’s, Doe #4’s, and Ms. Doe’s registration period from twenty-five years to life
violated the Due Process Clause of the Fourteenth Amendment. (Dkt. # 103, Pg. ID
5929-40.) The court held that, in general, the retroactive application of SORA’s lifetime
registration requirement is constitutional; however, the court noted that this finding does
6

not apply to the provisions of SORA which the court found constitutionally infirm. (Dkt. # 103, Pg. ID 5939.) The court also reserved judgment on the constitutionality of the retroactive application of SORA’s Internet reporting provision, through its incorporation in the lifetime registration requirement. (Id. at 5940.)
The Internet reporting provision requires registrants to report “[a]ll 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 electronic mail address or instant messaging system.” Mich. Comp. Laws § 28.727(1)(i). In its March 31, 2015 opinion, the court declared the requirement to report email and instant message addresses that are “routinely used by the individual” unconstitutional and enjoined its enforcement. (Dkt. # 103, Pg. ID 5946.) The court held that the prospective application of the rest of the of Internet reporting requirement—absent the “routinely used by the individual” clause—survived intermediate scrutiny and was, therefore, constitutional. In so holding, the court found that Michigan has “a compelling interest in protecting minors from violence and sexual abuse” (Dkt. # 103, Pg. ID 5921) and later noted that Michigan has “a robust interest in protecting the individuals, especially children, from online predators.” (Id. at 5940.)
The parties concede that Michigan has a significant interest in “investigating and deterring criminal activity” but now dispute whether retroactively requiring certain registrants to comply with the Internet reporting requirement for life, rather than for twenty-five years, is narrowly tailored to achieve that interest. (Dkt. # 106, Pg. ID 5960.)
Plaintiffs contend that “Defendants have offered no reason why 25 years of reporting would be insufficient . . . [nor] explained how lengthening reporting
7

requirements form 25 years to life does anything to deter crime.” (Id. 5960-61.) Moreover, they cite to research presented by an expert witness which shows that, “for medium-risk sex offenders, the risk of committing a sex offense drops off over time so that after 10-14 years offense-free in the community, it is below the baseline for non-sex offenders . . . [and] that high-risk sex offenders pose no more risk than [persons arrested for non-sexual offense] after 17 years offense-free in the community. (Dkt. # 90, Pg. ID 3802-03.) In other words, a convicted sex offender who has not re-offended in twenty-five years is less likely to commit a sex offense than someone who was previously arrested for a non-sex offense. (Id. at 3803 (graph at ¶ 354).) Plaintiffs also emphasize that the retroactive application of the Internet reporting requirement is overbroad in light of the fact that only approximately 5.5% to 7% of registrants were convicted of Internet or computer-related offenses. (Id. at 3874.) Likewise, Plaintiffs note that, while the reporting requirement does not prohibit any speech, it appears to have had a substantial chilling effect on registrants’ speech—whereas 92% of adult Americans use email, fewer than half of non-incarcerated Michigan registrants report having an email address or other Internet identifier. (Id. 3882.)
It is Defendants’ burden to show that the retroactive extension of the Internet reporting requirement from twenty-five years to life is narrowly tailored—meaning Defendants must show that such retroactive extension of the requirement does not “burden substantially more speech than is necessary to further the government's legitimate interests.” Ward, 491 U.S. at 799. Defendants have failed to carry this burden.
8

Defendants insist that the retroactive extension of the Internet reporting requirement from twenty-five years to life is narrowly tailored because “[t]he required internet information is available only to law enforcement,” “[t]he required information includes only electronic mail and instant message addresses, login names or other identities assigned to the individual,” and the court’s ruling concerning the “routinely used by the individual” clause further tailors the reporting requirement. (Dkt. # 107, Pg. ID 5976.) Defendants also assert that “[t]he State’s significant interest in protecting minors and vulnerable adults from internet predators would be substantially impaired absent this retroative internet registration requirement.” (Id. at 5977.) Without the retroactive application of the requirement, “investigations could be needlessly delayed and suspects could esacpe detection.” (Id.)
At the motion hearing on June 11, 2015 and in their Supplemental Brief (Dkt. # 107), Defendants addressed many of the points raised by Plaintiffs. They suggest that the fact that over 93% of registrations were not convicted of a computer or Internetrelated crime does not render the reporting requirement overbroad because having a database of Internet identifiers is useful for investigating and deterring offenses not related to computer use. They also attack the study which shows that registrants who have not re-offended in twenty-five years are less likely to commit a sex offense than persons who were arrested for a non-sex offenses on the grounds that the study had a small sample-size, it had all male subjects, the study’s risk analysis was suspectible to human error, and its definition of re-offending was limited to reconviction. However, it is not Plaintiffs’ burden to demonstrate that the retroactive application of the Internet reporting requirement is not narrowly tailored, and Defendants’ bare assertion that
9

requiring retroactive reporting would aid law enforcement in protecting the public is not enough to survive First Amendment intermediate scrutiny.
It is not hard to imagine how the retroactive application of the reporting requirement could assist law enforcement in protecting the public by making it easier to investigate and deter sex offenses committed using the Internet. Including offenders for life instead of only twenty-five years would add additional identifers to a searchable database which could help in the investigation of a crime in which one of those additional identifiers was used, and, in theory, it could deter a lifetime registrant from committing an offense using one of the identifiers that he (or she) reported to law enforcement.3 But the fact that extending the reporting requirement might enhance public safety does not, by itself, mean that the extension is narrowly tailored. Indeed, requiring persons arrested for any crime, all American citizens, or all persons present in the United States to register their Internet identifiers could aid law enforcement in investigating and deterring online sex offenses. If every American were required to register his email address, law enforcement would have an even more robust database to search when an Internet alias was used to commit an online offense. Of course, without more in the record, the court would have no basis to find these hypothetical registration requirements, which target individuals with no demonstrated enhanced risk of recidivism, to be narrowly tailored.
3The court questions whether any rational registrant would opt to use a registered identifier in the commission of a crime rather than creating a new identifier for the purposes of committing the crime. Even so, the database of Internet identifiers could be useful in tracking the conduct of impulsive or irrational registants, and it may permit law enforcement to arrest registrants for violating SORA when there is insufficient evidence of a separate offense.
10

Even crediting Defendants’ rebuttals to Plaintiffs arguments, Defendants have
not presented any evidence on which the court could find that requiring lifetime
reporting for registrants who have not been convicted of a sex offense in twenty-five
years is narrowly tailored to enhancing public safety any more than requiring lifetime
reporting for a random sample of 50,000 persons arrested for non-sex offenses. It is
true that the reporting requirement is tailored inasmuch as the reported Internet
identifiers do not prohibit any speech and are not currently available to the public. But,
without any evidence presented by Defendants showing that the retroactive application
of the reporting requirement increases public safety more than a reporting requirement
for 50,000 randomly selected Michiganders who were arrested for non-sex offenses, the
court cannot find the retroactive application narrowly tailored—no matter how minimal the burden on the registrants.4
Defendants argued during the motion hearing that, in addition to the state’s
interest in public safety, the retroactive application of the Internet reporting requirement
contributes to the state’s interest in national uniformity of sex offender registration laws.
In its March 31, 2015 Opinion, the court found that the desire to contribute to the
national uniformity of sex offender registration laws was a legitimate government
4The extent of the burden imposed by the reporting requirement is unclear from the record. The notable difference between the percentage of registrants who report Internet identifiers (less than 50%) and the percentage of adult Americans who use email (92%) is suspectible to a number of interpretations, including that there is rampant under-reporting, that the reporting requirement has a significant chilling effect on Internet use, and that some other variable (e.g., time in prison or age) rather than SORA is responsible for the disparity in Internet use. The court need not decide the magnitude of the potential burden imposed on registrants by applying the Internet reporting requirement retroactively; the court merely acknowledges that the retroactive application would impose at least a minimal burden.
11

purpose and that the retroactive application of the lifetime registration requirement helps further the goal of uniformity. (Dkt. # 103, Pg. ID 5938-39.) Defendants have not cited to case law suggesting that contributing to the national uniformity of laws is “a significant governmental interest,” Ward, 491 U.S. at 791, particularly where an apparent minority of jurisdictions have adopted the purportedly “uniform” law.
As of June 2014, seventeen states, three territories, and sixty-one tribes substantially complied with the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. §§ 16901 et seq. (Dkt. # 90, Pg. ID 3776), and retroactivity is one of the factors in determining substantial compliance.5 (Dkt. # 93-33, Pg. ID 5489.) Defendants have not identified which states, territories, and tribes have applied a lifetime requirement to report Internet identifiers retroactively. Thus, the court is unable to determine the extent to which extending SORA’s Internet reporting requirement retroactively would contribute to national uniformity.
Under the circumstances, Defendants have not demonstrated that the desire to conform Michigan sex offender registry with an unknown number of other jurisdictions’ registries is a substantial state interest; therefore, this interest cannot justify infringing upon registrants’ First Amendment right to free speech by extending the Internet reporting requirement retroactively from twenty-five years to life.
Last, it is worth noting that, while the court held in its March 31, 2015 opinion that the prospective application of § 28.727(1)(i)—absent the “routinely used by the individual” clause—survives intermediate scrutiny, the court’s inquiry into its retroactive
5In order to avoid losing certain federal funding, states were required to comply with SORNA by July 2011. (Dkt. # 90, Pg. ID 3776.)
12

application is different. Whereas, in the previous opinion, the court considered whether requiring registrants to report their Internet identifiers in general was narrowly tailored to protecting Michigan residents from criminal activity, the question now before the court is whether requiring registrants who have not committed an offense in twenty-five years to continue to register their internet Identifiers is narrowly tailored to the significant interest of preventing crime, while leaving ample alternative channels for communicating information.
As stated above, “a justification sufficient to validate a statute’s prospective application under the [Due Process] Clause ‘may not suffice’ to warrant its retroactive application.” Landsgraf, 511 U.S. at 166. Such is the case here. The court relied, in part, on Doe v. Harris, 772 F.3d 563 (9th Cir. 2014) and Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010) in concluding that the prospective application of § 28.727(1)(i) was narrowly tailored to achieve the goal of aiding law enforcement in preventing and investigating crime. (Dkt. # 103, Pg. ID 5918-29.). The court was able to reach this finding because there is evidence in the record—i.e., the research presented by Plaintiffs’ expert witness—showing that the majority of sex offenders are more likely to commit a sex offense than individuals arrested for crimes other than sex offenses. (Dkt. # 90, Pg. ID 3802-03.)
The research presented by Plaintiffs suggests that medium-risk and high-risk sex offenders pose a greater threat of committing sex offenses than individuals arrested for non-sex offenses for at least the first ten years after a convicted sex offender returns to the community, but, as discussed above, these offenders present no greater risk of committing a sex offense by their twenty-fifth year in the community than persons
13

arrested for non-sex offenses. (Dkt. # 90, Pg. ID 3803.) The court found it unnecessary to reduce the length of the Internet reporting requirement, as applied prospectively, in light of the standard set forth by the Supreme Court in Ward. In Ward, the Court expounded on the constitutional standard for content neutral regulations impacting free speech, explaining, “[s]o long as the means chosen are not substantially broader than necessary to achieve the government’s interest . . . , the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.” 491 U.S. at 800 (emphasis added).
The record supports the court’s conclusion that the prospective application of the Internet reporting provision is not substantially broader than necessary to enhance public safety by deterring registrants from utilizing the Internet in committing future offenses and making investigation of computer-based offenses easier on the grounds that (1) convicted sex offenders pose an enhanced risk of committing sex offenses, (2) SORA does not prohibit registrants from engaging in speech on the Internet, and (3) SORA does disclose registrants’ Internet identifiers to the public. (Dkt. # 103, Pg. ID 5926.) Meanwhile, Defendants have not carried their burden of showing that extending the reporting requirement from twenty-five years to life is narrowly tailored to contribute to public safety because, as stated above, the record does not support the finding that
convicted sex offenders who have not re-offended in twenty-five years pose an enhanced risk of committing sex offenses. The court’s inquiries regarding the
14

prospective and retrospective applications of § 28.727(1)(i) are different, as are its conclusions. III. CONCLUSION
IT IS ORDERED that Plaintiffs’ Rule 52 Motion for Judgment on the Papers (Dkt. # 96) is GRANTED IN PART and DENIED IN PART, consistent with the court’s previous orders.
IT IS FURTHER ORDERED that Defendants’ Rule 52 Motion for Judgment on the Papers (Dkt. # 97) is GRANTED IN PART and DENIED IN PART, consistent with the court’s previous orders.
IT IS FURTHER ORDERED that Mich. Comp. Laws § 28.725a(7) is declared unconstitutional and its enforcement is enjoined, as applied to John Doe #4.
IT IS FURTHER ORDERED that the retroactive incorporation of the lifetime registration requirement’s incorporation of the requirement to report “[a]ll electronic mail addresses and instant message addresses assigned to the individual . . . and all login names or other identifiers used by the individual when using any electronic mail address or instant messaging system,” Mich. Comp. Laws § 28.727(1)(i), is declared unconstitutional and its enforcement is enjoined.

Dated: September 3, 2015

s/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, September 3, 2015, by electronic and/or ordinary mail.

s/Lisa G. Wagner Case Manager and Deputy Clerk (313) 234-5522

15

16

 
 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
JOHN DOES #1-5 AND MARY DOE,

Plaintiffs, v

No. 2:12-cv-11194

RICK SNYDER, Governor of the State of Michigan, and COL. KRISTE ETUE, Director of the Michigan State Police, in their official capacities,

HON. ROBERT H. CLELAND MAG. DAVID R. GRAND

Defendants.

FINAL JUDGMENT In this action Plaintiffs John Doe #1-5 and Mary Doe challenged the constitutionality of Michigan’s Sex Offender Registration Act (“SORA”). See First Amended Complaint (Dkt. # 46, Pg. ID 840). Over the course of the litigation, the court has entered three substantive opinions and orders deciding the merits of Plaintiffs’ claims. The three orders include: 1. Order on Defendants’ Motion to Dismiss the Original Complaint. On March 18, 2013, the court entered an Opinion and Order (Dkt. # 27, Pg. ID 669) Granting in Part and Denying in Part

Defendants’ Amended Motion to Dismiss.
2. Order on the Parties’ Rule 52 Cross-Motions for
Judgment. On March 31, 2015, the court issued an Opinion and Order
(Dkt. # 103, Pg. ID 5875)1 Resolving Motions for Judgment (under Rule
52).2
3. Order Resolving Two Rule 52 Issues Left Undecided.
On September 3, 2015, the court issued an Opinion and Order
(Dkt. #118, Pg. ID 6015) Resolving [Two] Outstanding Issues Raised in
Plaintiffs’ and Defendants’ Motions for Judgment.
Because all Plaintiffs’ claims are now resolved, the court enters
this final judgment, awarding judgment in part to Plaintiffs and in part
to Defendants, as set forth in the court’s three opinions and orders
listed above. This judgment triggers the time to appeal the court’s
1 Defendants have filed an appeal of this order to the U.S. Sixth Circuit Court of Appeals, under 28 U.S.C. § 1292(a)(1), which permits interlocutory appeals of injunctive relief granted by the district court.
2 To the extent that Count IX of the First Amended Complaint (Dkt. 46, ¶382, Pg. ID 910) raised a claim that the 2011 iteration of SORA, combined with Public Act 149 of 2013, violates the Ex Post Facto Clause of the U. S. Constitution, and to the extent that the Court did not explicitly address that claim in its March 2015 Rule 52 Order (Dkt. # 103, Pg. ID 5940-45), the Court grants judgment to the Defendants for the reasons articulated in the March 2013 Order on the Motion to Dismiss (Dkt. # 27, Pg. ID 674-83).
2

opinions and orders (as to all issues decided by the Court other than the injunctive relief already appealed). The court has also entered a Stipulated Order (Dkt. # 120, Pg. ID 6032) deferring the parties’ motions for costs and attorney fees until after all appeals are concluded.
This is the final order in the case, and judgment is entered as set forth above.
SO ORDERED. s/Robert H. Cleland Hon. Robert H. Cleland U. S. District Judge
Dated: October 21, 2015
I hereby certify that a copy of the foregoing document was mailed to counsel of record and/or pro se parties on this date, October 21, 2015, by electronic and/or ordinary mail.
S/Lisa Wagner Case Manager and Deputy Clerk (313) 234-5522
3

 
 2:12-cv-1C11a9s4e-:R1H5-C1-5D3R6G DDooccu#m1e2n9t: 5F1-il1ed 0F8i/l2e5d/:1068/2P5g/2101o6f 19 PaPgge:ID1 6193 (1 of 19)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: August 25, 2016
Ms. Amanda S. Alexander University of Michigan Law School 701 S. State Street Ann Arbor, MI 48109
Ms. Alexandra S. Appatova Ohio Justice and Policy Center 215 E. 9th Street, Suite 601 Cincinnati, OH 45202
Ms. Miriam J. Aukerman American Civil Liberties Union Fund of Michigan West Regional Office 1514 Wealthy, S.E, Suite 242 Grand Rapids, MI 49506
Mr. Douglas Berman The Ohio State University Moritz College of Law 55 W. 12th Avenue, Drinko Hall Columbus, OH 43210-0000
Ms. Evelyn K. Calogero 215 N. Main Street Olivet, MI 49076
Ms. Candace C. Crouse Pinales Stachler Young Burrell & Crouse 455 Delta Avenue, Suite 105 Cincinnati, OH 45226
Mr. Erik A. Grill Office of the Attorney General of Michigan P.O. Box 30736 Lansing, MI 48909

2:12-cv-1C11a9s4e-:R1H5-C1-5D3R6G DDooccu#m1e2n9t: 5F1-il1ed 0F8i/l2e5d/:1068/2P5g/2201o6f 19 PaPgge:ID2 6194 (2 of 19)
Mr. Christian J. Grostic Kushner, Hamed & Grostic 1375 E. Ninth Street Suite 1930 Cleveland, OH 44114
Mr. Craig M. Jaquith Ohio Public Defender's Office Wrongful Conviction Project 250 E. Broad Street Suite 1400 Columbus, OH 43215
Ms. Jennifer M Kinsley Kinsley Law Office P.O. Box 19478 Cincinnati, OH 45219
Mr. N.C. Deday LaRene LaRene & Kriger 645 Griswold Street, Suite 1717 Detroit, MI 48226
Barbara R. Levine Citizens Alliance on Prisons and Public Spending 824 N. Capitol Avenue Lansing, MI 48906
Ms. Emma J. Llanso Center for Democracy & Technology 1634 I Street, N.W., Suite 1100 Washington, DC 20006
Mr. Michael L. Mittlestat State Appellate Defender Office 645 Griswold, Suite 3300 Detroit, MI 48226
Mr. Douglas R. Mullkoff 402 W. Liberty Ann Arbor, MI 48103
Ms. Valerie Ruth Newman State Appellate Defender Office 645 Griswold, Suite 3300 Detroit, MI 48226

2:12-cv-1C11a9s4e-:R1H5-C1-5D3R6G DDooccu#m1e2n9t: 5F1-il1ed 0F8i/l2e5d/:1068/2P5g/2301o6f 19 PaPgge:ID3 6195 (3 of 19)
David Post New America's Open Technology Institute 740 15th Street N.W., Suite 900 Washington, DC 20005
Mr. Paul D. Reingold Michigan Clinical Law Program University of Michigan 801 Monroe Street 363 Legal Research Building Ann Arbor, MI 48109
Ms. Liisa R. Speaker Speaker Law Firm 230 N. Sycamore Street Lansing, MI 48933
Ms. Sonja Starr University of Michigan Law School 625 S. State Street, Suite 3230 Ann Arbor, MI 48109
Mr. Michael Jay Steinberg American Civil Liberties Union Of Michigan 2966 Woodward Avenue Detroit, MI 48201
Mr. William W. Swor 645 Griswold Suite 3060 Penobscot Building Detroit, MI 48226
Mr. Corey Rayburn Yung University of Kansas School of Law 1535 W. 15th Street Lawrence, KS 66045
Mr. Evan C. Zoldan The University of Toledo College of Law Legal Clinic 2801 W. Bancroft Street Toledo, OH 43606-0000
Re: Case Nos. 15-1536/2346/2486, Does, et al v. Snyder, et al Originating Case No. : 2:12-cv-11194

2:12-cv-1C11a9s4e-:R1H5-C1-5D3R6G DDooccu#m1e2n9t: 5F1-il1ed 0F8i/l2e5d/:1068/2P5g/2401o6f 19 PaPgge:ID4 6196 (4 of 19)

Dear Counsel, The court today announced its decision in the above-styled cases. Enclosed is a copy of the court's opinion together with the judgment which has been entered
in conformity with Rule 36, Federal Rules of Appellate Procedure. Yours very truly,
Deborah S. Hunt, Clerk

cc: Mr. David J. Weaver Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

2:12-cv-1C11a9s4e-:R1H5-C1-5D3R6G DDooccu#m1e2n9t: 5F1-il2ed 0F8i/l2e5d/:1068/2P5g/2501o6f 19 PaPgge:ID1 6197 (5 of 19)

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0207p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

JOHN DOES #1–5; MARY DOE,

┐

Plaintiffs-Appellees (15-1536) Plaintiffs-Appellants/Cross-Appellees (15-2346 & 15-2486),

│ │ │

v.

││> Nos. 15-1536/2346/2486

RICHARD SNYDER, Governor of the State of Michigan, in his │

official capacity; KRISTE ETUE, Director of the Michigan State │

Police, in her official capacity,

│

Defendants-Appellants (15-1536), │

Defendants-Appellees/Cross-Appellants (15-2346 & 15-2486).

│ │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:12-cv-11194—Robert H. Cleland, District Judge.

Argued: January 27, 2016

Decided and Filed: August 25, 2016

Before: MERRITT, BATCHELDER, and DONALD, Circuit Judges.

_________________

COUNSEL
ARGUED: Erik A. Grill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants in 15-1536 and for Appellees/Cross-Appellants in 15-2346 and 152486. Miriam J. Aukerman, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Grand Rapids, Michigan, for Appellees in 15-1536 and for Appellants/Cross-Appellees in 152346 and 15-2486. ON BRIEF: Erik A. Grill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants in 15-1536 and for Appellees/Cross-Appellants in 15-2346 and 15-2486. Miriam J. Aukerman, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Grand Rapids, Michigan, Michael J. Steinberg, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, Paul D. Reingold, MICHIGAN CLINICAL LAW PROGRAM, Ann Arbor, Michigan, William W. Swor, Detroit, Michigan, for Appellees in 15-1536 and for Appellants/Cross-Appellees in 15-2346 and 152486. Christian J. Grostic, KUSHNER & HAMED CO., LPA, Cleveland, Ohio, Candace C.

1

2:12-cv-1C11a9s4e-:R1H5-C1-5D3R6G DDooccu#m1e2n9t: 5F1-il2ed 0F8i/l2e5d/:1068/2P5g/2601o6f 19 PaPgge:ID2 6198 (6 of 19)

Nos. 15-1536/2346/2486

Does, et al. v. Snyder, et al.

Page 2

Crouse, PINALES STACHLER YOUNG BURRELL & CROUSE CO., LPA, Cincinnati, Ohio for Amicus Curiae in 15-1536. Liisa R. Speaker, SPEAKER LAW FIRM PLLC, Lansing, Michigan, Sonja B. Starr, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, Douglas Mullkoff, KESSLER, MULLKOFF & HOOBERMAN LLP, Ann Arbor, Michigan, Craig Jaquith, OHIO PUBLIC DEFENDER, Columbus, Ohio, N.C. Deday Larene, LARENE & KRIGER, P.L.C., Detroit, Michigan, Jennifer M. Kinsley, NORTHERN KENTUCKY UNIVERSITY, Highland Heights, Kentucky, for Amici Curiae in 15-2346 and 152486.
_________________
OPINION _________________
ALICE M. BATCHELDER, Circuit Judge. Like many states, Michigan has amended its Sex Offender Registration Act (SORA) on a number of occasions in recent years for the professed purpose of making Michigan communities safer and aiding law enforcement in the task of bringing recidivists to justice. Thus, what began in 1994 as a non-public registry maintained solely for law enforcement use, see Mich. Pub. Act 295, § 10 (1994), has grown into a byzantine code governing in minute detail the lives of the state’s sex offenders, see Mich. Comp. Laws § 28.723, et seq. Over the first decade or so of SORA’s existence, most of the changes centered on the role played by the registry itself. In 1999, for example, the legislature added the requirement that sex offenders register in person (either quarterly or annually, depending on the offense) and made the registry available online, providing the public with a list of all registered sex offenders’ names, addresses, biometric data, and, since 2004, photographs. See Mich. Pub. Act. 85 §§ 5a(4), 8(2), 10(2)(3) (1999); Mich. Pub. Acts 237, 238 (2004). Michigan began taking a more aggressive tack in 2006, however, when it amended SORA to prohibit registrants (with a few exceptions, see Mich. Comp. Laws § 28.734–36) from living, working, or “loitering”1 within 1,000 feet of a school. See Mich. Pub. Acts 121, 127 (2005). In 2011, the legislature added the requirement that registrants be divided into three tiers, which ostensibly correlate to current dangerousness, but which are based, not on individual assessments, but solely on the crime of conviction. See Mich. Pub. Acts 17, 18 (2011). The

1SORA defines “loiter” as “to remain [in a place] for a period of time and under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors.” Mich. Comp. Laws §28.733(b)).

2:12-cv-1C11a9s4e-:R1H5-C1-5D3R6G DDooccu#m1e2n9t: 5F1-il2ed 0F8i/l2e5d/:1068/2P5g/2701o6f 19 PaPgge:ID3 6199 (7 of 19)

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Does, et al. v. Snyder, et al.

Page 3

2011 amendments also require all registrants to appear in person “immediately” to update information such as new vehicles or “internet identifiers” (e.g., a new email account). See id. The 2006 and 2011 amendments apply retroactively to all who were required to register under SORA. See Mich. Pub. Act 46 (2006); Mich. Pub. Acts 17, 18 (2011). Violations carry heavy criminal penalties. See Mich. Comp. Laws § 28.729.
The Plaintiffs in this case—identified here only as five “John Does” and one “Mary Doe”—are registered “Tier III” sex offenders currently residing in Michigan. It is undisputed on appeal that SORA’s 2006 and 2011 amendments apply to them retroactively. That law has had a significant impact on each of them that reaches far beyond the stigma of simply being identified as a sex offender on a public registry. As a result of the school zone restrictions, for example, many of the Plaintiffs have had trouble finding a home in which they can legally live or a job where they can legally work. These restrictions have also kept those Plaintiffs who have children (or grandchildren) from watching them participate in school plays or on school sports teams, and they have kept Plaintiffs from visiting public playgrounds with their children for fear of “loitering.” Plaintiffs are also subject to the frequent inconvenience of reporting to law enforcement in person whenever they change residences, change employment, enroll (or unenroll) as a student, change their name, register a new email address or other “internet identifier,” wish to travel for more than seven days, or buy or begin to use a vehicle (or cease to own or use a vehicle). See Mich. Comp. Laws §§ 28.722(g), 725(1).
Plaintiffs sued Michigan Governor Richard Snyder and Colonel Kriste Etue, the director Michigan’s state police (collectively, “Michigan”), challenging SORA’s validity on a number of different grounds, including that portions of SORA are unconstitutionally vague, that its requirements should not be construed as creating strict liability offenses, that SORA violates the right to free speech guaranteed by the First Amendment, and that it violates the Fourteenth Amendment by imposing oppressive restrictions on Plaintiffs’ ability to parent, work, and travel. Plaintiffs also contended that SORA’s retroactive application to them—specifically, the retroactive application of the amendments that went into effect starting in 2006 or later— amounts to an Ex Post Facto punishment prohibited by the Constitution. See U.S. Const. art. I, §10, cl. 1.

2:12-cv-1C11a9s4e-:R1H5-C1-5D3R6G DDooccu#m1e2n9t: 5F1-il2ed 0F8i/l2e5d/:1068/2P5g/2801o6f 19 PaPgge:ID4 6200 (8 of 19)

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Page 4

In a handful of opinions, including an opinion following from a Rule 52 bench trial, the district court concluded, among other things, that SORA was not an Ex Post Facto law and that most of its provisions did not violate the Constitution’s guarantee of due process. It did conclude, however, that Plaintiffs were correct that some of SORA’s provisions were unconstitutionally vague, that those who are required to register under that law cannot be held strictly liable for violating its requirements, and that its retroactive requirement that sex offenders register on-line aliases for life violated the First Amendment. Both sides filed timely appeals, which we have consolidated.
We begin our analysis with the Ex Post Facto issue. As is the case with many of the Constitution’s guarantees—“due process of law,” “the freedom of speech,” “the right of the people to keep and bear arms”—the Ex Post Facto clause leaves unanswered foundational questions about the guarantee’s scope and means of enforcement. The document itself provides simply that “No State shall . . . pass any . . . ex post facto Law.” U.S. Const. art. I § 10, cl. 1. As with the other guarantees, it is the courts that have done most of the work in expounding the legal meaning of this provision—indeed, the Ex Post Facto clause was one of the first, if not the first, such constitutional question to be exposited by the Supreme Court, when it issued its 1798 decision in Calder v. Bull, 3 U.S. 386 (1798). That case, consistent with what scholars have identified as the majority position at the time of the founding, held that the Constitution’s ban on Ex Post Facto laws does not bar all retroactive lawmaking, but only retroactive punishment, a codification of what many in the founding generation believed to be a self-evident truth: nulle poena sine lege, no punishment without a law. See Calder, 3 U.S. at 388 (Opinion of Chase, J.) (explaining the Court’s holding that the Ex Post Facto clause prohibits only retroactive punishment and opining that such punishment was so “contrary to the great first principles of the social compact [that it could not] be considered a rightful exercise of legislative authority” even if there were no provision in the Constitution prohibiting it); see also David F. Forte, Ex Post Facto, in The Heritage Guide to the Constitution, 203, 203–04 (David F. Forte & Matthew Spalding, eds. 2d ed. 2014).
This understanding has kept courts from interfering with state sovereignty in many cases, but it has also provided a powerful check on states when they have sought to punish socially

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Page 5

disfavored persons without prior notice. As Chief Justice John Marshall explained in Fletcher v. Peck:
Whatever respect might have been felt for the state sovereignties, it is not to be disguised that the framers of the constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment; and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed.
10 U.S. 87, 137–38 (1810). The guarantee is, as James Madison put it, a “constitutional bulwark in favour of personal security and private rights.” The Federalist No. 44, at 232 (James Madison) (The Gideon ed., George W. Carey & James McClellan eds., Liberty Fund 2001). As these quotations suggest, moreover, the distinction between civil regulation and criminal punishment has never been woodenly applied. “[I]t is the effect, not the form, of the law that determines whether it is ex post facto.” Weaver v. Graham, 450 U.S. 24, 31 (1981).
And while some have questioned the self-evidence of nulle poena sine lege, see, e.g., Calder, 3 U.S. at 399 (Opinion of Iredell, J.) (“The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject.”), and others have called into doubt the correctness of Calder’s civil/criminal distinction, see, e.g., Eastern Enterprises v. Apfel, 524 U.S. 498, 539 (1998) (Thomas, J., concurring) (“I would be willing to reconsider Calder and its progeny to determine whether a retroactive civil law that passes muster under our current Takings Clause jurisprudence is nonetheless unconstitutional under the Ex Post Facto Clause.”), the test we must apply, as a lower court, is quite fixed: an ostensibly civil and regulatory law, such as SORA, does not violate the Ex Post Facto clause unless the plaintiff can show “by the clearest proof” that “what has been denominated a civil remedy” is, in fact, “a criminal penalty,” Smith v. Doe, 538 U.S. 84, 92 (2003) (citation and internal quotation marks omitted).
The Supreme Court’s decision in Smith is particularly germane to this case. In Smith, the Court considered an Ex Post Facto challenge to Alaska’s sex-offender registry law. Alaska’s regime was more modest than SORA, but the two share some core provisions: sex offenders residing in Alaska had to submit to annual or quarterly registration (though not in person) and

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had to give the State updates for such things as moving, growing a beard, changing hair color, or getting a new car. Id. at 90–91; 101. Like Michigan under SORA, Alaska maintained a website that published the offenders’ names, addresses, photos, physical descriptions, license numbers, places of employment, dates of birth, crimes of conviction, dates and places of conviction, and length of sentences, as well the offenders’ compliance with the registration requirements. Id. at 91.
The Court in Smith concluded that Alaska’s law was civil, not criminal, employing a twopart test: (1) Did the legislature intend to impose punishment? And (2), if not, is the statutory scheme “‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’” Id. at 92 (quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997)) (brackets in original).
With respect to the first question, SORA, like the Alaska statute, includes a statement of purpose that evinces no punitive intent:
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 officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders. The legislature has determined that a person who has been convicted of committing 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 of this 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.
Mich. Comp. Laws § 28.721a. And while Plaintiffs do point to some features that might suggest a punitive aim—e.g., SORA is triggered solely by criminal offenses and the registration requirement is recorded on the judgment; registration is handled by criminal justice agencies like the police; SORA imposes criminal sanctions; and it is codified in Chapter 28 of the Michigan Code, a chapter that deals with police-related laws—these are similar enough to the arguments rejected in Smith that we see no warrant for concluding that SORA’s intent is punitive. See Smith, 538 U.S.at 95.

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We must therefore consider whether SORA’s actual effects are punitive. Out of the seven factors—non-dispositive “guideposts”—that typically inform this inquiry, Smith identified five that are relevant in this kind of case:
(1) Does the law inflict what has been regarded in our history and traditions as punishment?
(2) Does it impose an affirmative disability or restraint? (3) Does it promote the traditional aims of punishment? (4) Does it have a rational connection to a non-punitive purpose? (5) Is it excessive with respect to this purpose?
Smith, 538 U.S. at 97 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963)). We consider each factor in turn.
History and Tradition. As amici law professors point out, though SORA has no direct ancestors in our history and traditions, its restrictions do meet the general, and widely accepted, definition of punishment offered by legal philosopher H.L.A. Hart: (1) it involves pain or other consequences typically considered unpleasant; (2) it follows from an offense against legal rules; (3) it applies to the actual (or supposed) offender; (4) it is intentionally administered by people other than the offender; and (5) it is imposed and administered by an authority constituted by a legal system against which the offense was committed. See H.L.A. Hart, Punishment and Responsibility 4–5 (1968).
More specifically, SORA resembles, in some respects at least, the ancient punishment of banishment. True, it does not prohibit the registrant from setting foot in the school zones, and it certainly doesn’t make a registrant “dead in law [and] entirely cut off from society,” which is how Blackstone described the banished. 1 William Blackstone, Commentaries *132. But its geographical restrictions are nevertheless very burdensome, especially in densely populated areas. Consider, for example, this map of Grand Rapids, Michigan, prepared by one of Plaintiff’s expert witnesses:

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Sex Offenders are forced to tailor much of their lives around these school zones, and, as the record demonstrates, they often have great difficulty in finding a place where they may legally live or work. Some jobs that require traveling from jobsite to jobsite are rendered basically unavailable since work will surely take place within a school zone at some point.
SORA’s requirements also resemble traditional shaming punishments. Unlike the law in Smith, which republished information that was already publically available, SORA ascribes and publishes tier classifications corresponding to the state’s estimation of present dangerousness

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without providing for any individualized assessment. These designations are unappealable, and apply even to those whose offenses would not ordinarily be considered sex offenses. Doe # 1, for example, is on the registry because of a non-sexual kidnapping offense arising out of a 1990 robbery of a McDonald’s. In other cases, SORA discloses otherwise non-public information. Doe # 2, for example, is on the registry because, in 1996, when he was eighteen years old, he pled guilty under Michigan’s “Holmes Youthful Trainee Act,” Mich. Comp. Laws § 762.11, a record-sealing statute for young offenders, to “Criminal Sexual Conduct III” for having sex with a fourteen-year-old girl with whom he had a romantic relationship. But for SORA’s retroactive application to him, his criminal record would not be available to the public. Thus, unlike the statute in Smith, the ignominy under SORA flows not only from the past offense, but also from the statute itself.
Finally, SORA also resembles the punishment of parole/probation. In Smith, which involved nothing more than reporting requirements, the Court took seriously the claim that the Alaska statute resembled parole/probation, acknowledging that “[t]his argument has some force, but,” concluding that it was ultimately dissimilar because, unlike parolees, “offenders subject to the Alaska statute are free to move where they wish and to live and work as other citizens, with no supervision.” 538 U.S. at 101. Under SORA, by contrast, registrants are subject to numerous restrictions on where they can live and work and, much like parolees, they must report in person, rather than by phone or mail. Failure to comply can be punished by imprisonment, not unlike a revocation of parole. And while the level of individual supervision is less than is typical of parole or probation, the basic mechanism and effects have a great deal in common. In fact, many of the plaintiffs have averred that SORA’s requirements are more intrusive and more difficult to comply with than those they faced when on probation.
In sum, while SORA is not identical to any traditional punishments, it meets the general definition of punishment, has much in common with banishment and public shaming, employs geographical restrictions similar to those employed by punitive sun-down laws, and has a number of similarities to parole/probation. This factor thus weighs in Plaintiffs’ favor.
Affirmative Disability or Restraint. As should be evident, SORA requires much more from registrants than did the statute in Smith. Most significant is its regulation of where

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registrants may live, work, and “loiter.” As discussed above, these restrictions put significant restraints on how registrants may live their lives. Further, as also mentioned above, registrants must appear in person, both initially and for updates, and, if they are “Tier III” offenders, they must do so for life. These are direct restraints on personal conduct.
Michigan points out, however, that these restraints are not physical in nature and contends that the actual effects are therefore “minor and indirect” like those in the statute considered in Smith, 538 U.S. at 100. But surely something is not “minor and indirect” just because no one is actually being lugged off in cold irons bound. Indeed, those irons are always in the background since failure to comply with these restrictions carries with it the threat of serious punishment, including imprisonment. These restraints are greater than those imposed by the Alaska statute by an order of magnitude. Cf. Smith, 538 U.S. at 101 (noting, for example, that “[t]he Alaska statute, on its face, does not require these updates to be made in person”).
Michigan has a stronger point in noting that SORA’s restrictions are in some ways not as severe as complete occupation-disbarment, which has been held to be non-punitive. Id. at 100; see also De Veau v. Braisted, 363 U.S. 144 (1960) (forbidding work as a union official); Hawker v. New York, 170 U.S. 189 (1898) (revocation of a medical license). But no disbarment case we are aware of has confronted a law with such sweeping conditions or approved of disbarment without some nexus between the regulatory purpose and the job at issue. SORA’s restrictions are again far more onerous than those considered in Smith. And this factor too therefore weighs in Plaintiffs’ favor.
Traditional Aims of Punishment. SORA advances all the traditional aims of punishment: incapacitation, retribution, and specific and general deterrence. Its very goal is incapacitation insofar as it seeks to keep sex offenders away from opportunities to reoffend. It is retributive in that it looks back at the offense (and nothing else) in imposing its restrictions, and it marks registrants as ones who cannot be fully admitted into the community. Further, as discussed below, it does so in ways that relate only tenuously to legitimate, non-punitive purposes. Finally, its professed purpose is to deter recidivism (though, as discussed below, it does not in fact appear to do so), and it doubtless serves the purpose of general deterrence. See J.J. Prescott & Jonah E.

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Rockoff, Do Sex offender Registration and Notification Laws Affect Criminal Behavior?, 54 J.L. & Econ. 161 (2011).
Of course, many of these goals can also rightly be described as civil and regulatory. See Smith, 538 U.S. at 102 (“Any number of governmental programs might deter crime without imposing punishment. To hold that the mere presence of a deterrent purpose renders such sanctions criminal would severely undermine the Government’s ability to engage in effective regulation.” (internal quotation marks and citation omitted)). And we accordingly give this factor little weight.
Rational Relation to a Non-Punitive Purpose. “The Act’s rational connection to a nonpunitive purpose is a ‘[m]ost significant’ factor in our determination that the statute’s effects are not punitive.” Id. (quoting United States v. Ursery, 518 U.S. 267, 290 (1996)) (brackets in original). As in Smith, the legislative reasoning behind SORA is readily discernible: recidivism rates of sex offenders, according to both the Michigan legislature and Smith, are “frightening and high”; informing the public of sex offenders’ addresses, photos, tier rankings, etc. provides a mechanism to keep tabs on them with a view to preventing some of the most disturbing and destructive criminal activity; and school zones keep sex offenders away from the most vulnerable.
Intuitive as some may find this, the 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.’” 538 U.S. at 103 (quoting McKune v. Lile, 536 U.S. 24, 34 (2002)). One 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. [R. 90 at 3846–49]. 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,

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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. And while it is intuitive to think that at least some sex offenders—e.g., the stereotypical playground-watching pedophile—should be kept away from schools, the statute makes no provision for individualized assessments of proclivities or dangerousness, even though the danger to children posed by some—e.g., Doe # 1, who never committed a sexual offense—is doubtless far less than that posed by a serial child molester.
Excessiveness. 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. [R. 90 at 3768–69]. 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.
So, is SORA’s actual effect punitive? Many states confronting similar laws have said “yes.” See, e.g., Doe v. State, 111 A.3d 1077, 1100 (N.H. 2015); State v. Letalien, 985 A.2d 4, 26 (Me. 2009); Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999, 1017 (Alaska 2008). And we agree. In reaching this conclusion, we are mindful that, as Smith makes clear, states are free to pass retroactive sex-offender registry laws and that those challenging an ostensibly non-punitive civil law must show by the “clearest proof” that the statute in fact inflicts punishment. But difficult is not the same as impossible. Nor should Smith be understood as writing a blank check to states to do whatever they please in this arena.
A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person

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reporting, all supported by—at best—scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law. SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.
We conclude that Michigan’s SORA imposes punishment. And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased. Indeed, the fact that sex offenders are so widely feared and disdained by the general public implicates the core countermajoritarian principle embodied in the Ex Post Facto clause. As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice. Such lawmaking has “been, in all ages, [a] favorite and most formidable instrument[] of tyranny.” The Federalist No. 84, supra at 444 (Alexander Hamilton). It is, as Justice Chase argued, incompatible with both the words of the Constitution and the underlying first principles of “our free republican governments.” Calder, 3 U.S. at 388–89; accord The Federalist No. 44, supra at 232 (James Madison) (“[E]x post facto laws . . . are contrary to the first principles of the social compact, and to every principle of sound legislation.”). The retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.
As we have explained, this 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. These questions, however, will have to wait for another day because none of the contested provisions may now be applied to the plaintiffs in this lawsuit, and anything we would say on those other matters would be dicta.

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We therefore reverse the district court’s decision that SORA is not an Ex Post Facto law and remand for entry of judgment consistent with this opinion.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Nos. 15-1536/2346/2486

FILED
Aug 25, 2016

JOHN DOES #1–5; MARY DOE,

DEBORAH S. HUNT, Clerk

Plaintiffs - Appellees (15-1536),

Plaintiffs - Appellants/Cross - Appellees (15-2346 & 15-2486),

v.

RICHARD SNYDER, Governor of the State of Michigan, in his official capacity; KRISTE ETUE, Director of the Michigan State Police, in her official capacity,
Defendants - Appellants (15-1536), Defendants - Appellees/Cross - Appellants (15-2346 & 15-2486).

Before: MERRITT, BATCHELDER, and DONALD, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

THIS CAUSE was heard on the record from the district court and was argued by counsel.

IN CONSIDERATION WHEREOF, it is ORDERED that the district court’s decision is REVERSED, and the case is REMANDED for entry of judgment consistent with the opinion of this court.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 Case 2:12-cv-11194-RHC-DRG ECF No. 138 filed 04/03/17 PageID.6245 Page 1 of 4

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOES #1-5 AND MARY DOE,

Plaintiffs, v.
RICK SNYDER, Governor of the State of Michigan, and COL. KRISTE ETUE, Director of the Michigan State Police, in their official capacities,

No. 2:12-cv-11194 HON. ROBERT H. CLELAND MAG. DAVID R. GRAND

Defendants.

STIPULATED ORDER GRANTING INTERIM INJUNCTIVE RELIEF ON REMAND This case is before the Court on remand from the Sixth Circuit, pending a decision by the U.S. Supreme Court on Defendants’ petition for certiorari. The mandate of the Sixth Circuit has not been stayed. This order is not a final judgment, but is intended to resolve the dispute between the parties on an interim basis, pending resolution of the appeal by the U.S. Supreme Court and the entry of a new order or a final judgment by this Court. If the State’s petition for certiorari is denied, or if the U.S. Supreme Court issues a decision on the merits, the parties will schedule a status conference forthwith to determine how to proceed.

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The parties stipulate to, and the Court orders, interim injunctive relief as follows:
1. Plaintiff John Doe #5 will not be subject to SORA as long as this order remains in effect. His name will be removed from the registry, he will have no reporting requirements, and Defendants will not attempt to enforce any SORA provision against him and will notify local law enforcement and the prosecutor in the jurisdiction where he last registered of this order and of the Court’s protective order.1
2. Plaintiffs John Does #1-4 and Mary Doe will be subject to the following, as long as this order remains in effect:
a. They will not be listed on the public registry, but will instead only be listed on the non-public law enforcement registry.
b. They will be required to verify quarterly, reporting current address information and any name change pursuant to M.C.L. §§ 28.727(1)(a) and (d).
c. Defendants will make a notation on Plaintiffs’ non-public law enforcement registry page alerting viewers to contact the Michigan State Police and/or the Attorney General’s Office before taking any action against Plaintiffs on SORA-related offenses. Defendants will also notify the chief local law enforcement and prosecutor in the jurisdiction where Plaintiffs reside and register of this order and of the Court’s protective order.
1 Doe #5 was made subject to SORA for a 1980 sex offense only because he was convicted of a non-sex offense in 2011, and he was therefore subject to registration under the 2011 “recapture” amendments.
2

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d. Defendants will not enforce against Plaintiffs any provisions of SORA that became effective since January 1, 2006, including but not limited to the geographic zones added by Mich. Pub. Act 121, 127 (2005) (M.C.L. §§ 28.733-736), and the reporting and “immediate” reporting requirements added by Mich. Pub. Act 17-18 (2011) (M.C.L. §§ 28.725, 28.727 (except 28.727(1)(a) and (d)).
e. Plaintiffs’ registration periods will be amended to run for 25 years instead of for life.
3. Plaintiffs’ agreement to this interim order will not waive any defenses that may be available to them in any criminal prosecution, including any defenses based on the Sixth Circuit’s or this Court’s decisions in Does v. Snyder.
4. Neither Plaintiffs nor Defendants may use the fact that the other parties agreed to this interim order as an admission or concession, or as a waiver of any arguments or defenses in this or any other SORA-related litigation, including but not limited to arguments about whether the aspects of SORA found unconstitutional by the Sixth Circuit are severable, or in arguing about the proper interpretation of the Supreme Court’s, Sixth Circuit’s, or this Court’s decisions.
5. In the event that the Sixth Circuit’s Does v. Snyder decision is reversed or otherwise made void or ineffective, the parties will immediately schedule a status conference to dissolve this order and to substitute or to reinstate whatever orders
3

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6. may be appropriate in light of the appellate decision.

SO ORDERED.

Dated: April 3, 2017

S/Robert H. Cleland Hon. Robert H. Cleland U. S. District Judge

Stipulated and approved for entry:

/s/ Miriam Aukerman (P63165) American Civil Liberties Union
Fund of Michigan Attorney for Plaintiffs

/s/ Erik Grill (P64713) Assistant Attorney General Attorney for Defendants

/s/ Paul D. Reingold (P27594) Michigan Clinical Law Program Attorney for Plaintiffs

4

 
 Case 2:12-cv-11194-RHC-DRG ECF No. 153 filed 01/26/18 PageID.6513 Page 1 of 5

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOES #1-5 AND MARY DOE, Plaintiffs, v.
RICK SNYDER, Governor of the State of Michigan, and COL. KRISTE ETUE, Director of the Michigan State Police, in their official capacities, Defendants.

No. 2:12-cv-11194 HON. ROBERT H. CLELAND MAG. DAVID R. GRAND

STIPULATED FINAL JUDGMENT ON REMAND Over the course of the litigation in this case, the Court entered several substantive orders deciding the merits of the plaintiffs’ claims. (Dkt. #27, Pg. ID 669, 3/18/13 Opinion and Order Granting in Part and Denying in Part Defendants’ Amended Motion to Dismiss; Dkt. #103, Pg. ID 5875, 3/31/15 Opinion and Order Resolving Motions for Judgment under Rule 52; Dkt. #118, Pg. ID 6015, 9/3/15 Opinion and Order Resolving [Two] Outstanding Issues Raised in Plaintiffs’ and Defendants’ Motions for Judgment). A Final Judgment was entered on October 21, 2015. (Dkt. #122, Pg. ID 6038, 10/21/15 Final Judgment). The plaintiffs appealed the March 18, 2013, Order (Dkt. #27), the March 31, 2015, Order (Dkt. #103), the September 3, 2015, Order (Dkt. #118) and the October 21, 2015, Final Judgment (Dkt. #22). The defendants appealed the

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March 31, 2015, Order (Dkt. #103) and the October 21, 2015, Final Judgment (Dkt. #122).
This case is now before the Court on remand from the Sixth Circuit Court of Appeals “for entry of judgment consistent with [the Sixth Circuit’s] opinion.” Does #1-5 v. Snyder, 834 F.3d 606, 706 (6th Cir. 2016), cert denied 583 U.S. ___ (10/2/17). The Court therefore orders the following declaratory and injunctive relief in the plaintiffs’ favor pursuant to Fed. R. Civ. P. 57, 58, and 65:
1. IT IS HEREBY ORDERED that this is the Final Judgment on the merits in this case and supersedes the Court’s Final Judgment entered October 21, 2015 (Dkt. #122, Pg. ID 6038).
2. IT IS FURTHER ORDERED that pursuant to 28 U.S.C. § 2201 a declaratory judgment is entered that retroactive application of the Michigan’s Sex Offenders Registration Act’s (SORA) 2006 and 2011 amendments violates the Ex Post Facto Clause of the U.S. Constitution.
3. IT IS FURTHER ORDERED that the defendants, their officers, agents servants, employees, and attorneys, and other persons in active concert or participation with them, are enjoined from enforcing the 2006 and 2011 SORA amendments against the plaintiffs.
4. IT IS FURTHER ORDERED that plaintiff John Doe #5 is not subject to SORA under the “recapture” provision of the 2011 amendments as long as this
2

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judgment remains in effect. It is further ordered that his name shall be removed
from both Michigan’s non-public (law enforcement) and public registries; he shall
have no reporting requirements; and the defendants are enjoined from enforcing
any SORA provision against him.
5. IT IS FURTHER ORDERED that plaintiffs John Does #1-4 and Mary
Doe will be subject to the following, as long as this Judgment remains in effect:
a. They will not be listed on the public registry, but will instead only be listed on the non-public law enforcement registry.
b. The only requirements or restrictions of SORA that apply to them are:
1. To verify quarterly. At quarterly verification they shall report (i) current residential address information and any name change (as set out in M.C.L. §§ 28.727(1)(a) and (d)); and (ii) enrollment at an institution of higher learning or campus information change (as set out in M.C.L. § 28.724a(1)-(2)). Per agreement of the parties, quarterly reporting periods shall be based on the birth-month schedule set out in M.C.L. § 28.725a (3)(b).
2. To provide fingerprints if not already on file with the Michigan State Police (as set out in M.C.L. § 28.727(1)(q)).
3. To pay the annual fees unless indigent (as set out in M.C.L. §§ 28.725a(6)(b)-(c) and 28.725b(3)).
c. The defendants will make a notation on the private (law enforcement) registry for each plaintiff alerting viewers to contact the Michigan State Police before taking any action against the plaintiffs on SORArelated offenses, and, if contacted, the Michigan State Police will notify the person making that contact of the Court’s protective order.
d. These plaintiffs’ registration periods will be amended to run for 25 years instead of for life.
3

Case 2:12-cv-11194-RHC-DRG ECF No. 153 filed 01/26/18 PageID.6516 Page 4 of 5
6. IT IS FURTHER ORDERED that this judgment does not bar application of SORA to any plaintiff in the event that the plaintiff is convicted of an offense that occurred after July 1, 2011, that requires registration under SORA.
7. IT IS FURTHER ORDERED that if the Michigan legislature amends or replaces SORA to implement the Sixth Circuit’s holding in Does #1-5 v. Snyder, this injunction shall terminate on the effective date of any such amendments or new statute.
8. IT IS FURTHER ORDERED that the defendants’ Motion For Entry of Judgment (Dkt. #146, Pg. ID ## 6268) and the plaintiffs’ Response To Motion For Entry of Judgment (Dkt. # 147, Pg. ID 6283) are withdrawn.
9. IT IS FURTHER ORDERED that this Court retains jurisdiction in order to enforce this order and to decide the plaintiffs’ petition for attorneys’ fees and costs, which shall be due 60 days from the date of entry of this order. See Stipulated Order Setting Date for Plaintiffs’ Motion for Fees and Costs, ECF #144, Pg.ID# 6260.
Judgment is entered as set forth above. SO ORDERED.
S/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE
Dated: January 26, 2018 4

Case 2:12-cv-11194-RHC-DRG ECF No. 153 filed 01/26/18 PageID.6517 Page 5 of 5
I hereby certify that a copy of the foregoing document was mailed to counsel of record and/or pro se parties on this date, January 26, 2018, by electronic and/or ordinary mail.
S/Lisa Wagner Case Manager and Deputy Clerk (810) 292-6522
APPROVED FOR ENTRY:
/s/Miriam Aukerman (w/permission) Attorney for Plaintiffs Dated: January 12, 2018 /s/Paul D. Reingold (w/permission) Attorney for Plaintiffs Dated: January 12, 2018 /s/Margaret A. Nelson Assistant Attorney General Attorney for Defendants Dated: January 12, 2018
5

 
 Does #1-5 v. Snyder, 834 F.3d 696 (2016)

834 F.3d 696 United States Court of Appeals,
Sixth Circuit.
John DOES #1-5; Mary Doe, Plaintiffs–Appellees (15-1536), Plaintiffs–Appellants/Cross–Appellees
(15-2346 & 15-2486), v.
Richard SNYDER, Governor of the State of Michigan, in his official capacity; Kriste Etue, Director of the Michigan State Police, in her official capacity, Defendants–Appellants (151536), Defendants–Appellees/Cross–Appellants
(15-2346 & 15-2486).
Nos. 15-1536/2346/2486 |
Argued: January 27, 2016 |
Decided and Filed: August 25, 2016 |
Rehearing Denied September 15, 2016
Synopsis Background: Registered sex offenders brought action challenging the constitutionality of the Michigan Sex Offenders Registration Act (SORA). The United States District Court for the Eastern District of Michigan, Robert H. Cleland, District Judge, concluded that SORA was not an Ex Post Facto law and that some provisions did not violate due process, on State’s motion to dismiss, 932 F.Supp.2d 803, but after a summary bench trial on the records, held some provisions were unconstitutionally vague, 101 F.Supp.3d 672, among other holdings. Offenders and State appealed.
The Court of Appeals, Alice M. Batchelder, Circuit Judge, held that retroactive imposition of SORA’s amendments violated the Ex Post Facto clause.
Reversed and remanded.
West Codenotes
Unconstitutional as Applied Mich. Comp. Laws Ann. §§ 28.722, 28.723, 28.723a, 28.724, 28.724a, 28.725, 28.725a, 28.725b, 28.726,
1

28.727, 28.728, 28.728a, 28.728c, 28.728d, 28.729, 28.730.
*697 Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:12-cv11194—Robert H. Cleland, District Judge.
Attorneys and Law Firms
ARGUED: Erik A. Grill, Office of the Michigan Attorney General, Lansing, Michigan, for Appellants in 15-1536 and for Appellees/Cross–Appellants in 15-2346 and 152486. Miriam J. Aukerman, American Civil Liberties Union Fund of Michigan, Grand Rapids, Michigan, for Appellees in 15-1536 and for Appellants/Cross–Appellees in 15-2346 and 15-2486. ON BRIEF: Erik A. Grill, Office of the Michigan Attorney General, Lansing, Michigan, for Appellants in 15-1536 and for Appellees/Cross– Appellants in 15-2346 and 15-2486. Miriam J. Aukerman, American Civil Liberties Union Fund of Michigan, Grand Rapids, Michigan, Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Detroit, Michigan, Paul D. Reingold, Michigan Clinical Law Program, Ann Arbor, Michigan, William W. Swor, Detroit, Michigan, for Appellees in 15-1536 and for Appellants/Cross– Appellees in 15-2346 and 15-2486. Christian J. Grostic, Kushner & Hamed Co., LPA, Cleveland, Ohio, Candace C. Crouse, Pinales Stachler Young Burrell & Crouse Co., LPA, Cincinnati, Ohio for Amicus Curiae in 15-1536. Liisa R. Speaker, Speaker Law Firm PLLC, Lansing, Michigan, Sonja B. Starr, University of Michigan Law School, Ann Arbor, Michigan, Douglas Mullkoff, Kessler, Mullkoff & Hooberman LLP, Ann Arbor, Michigan, Craig Jaquith, Ohio Public Defender, Columbus, Ohio, N.C. Deday Larene, Larene & Kriger, P.L.C., Detroit, Michigan, Jennifer M. Kinsley, Northern Kentucky University, Highland Heights, Kentucky, for Amici Curiae in 15-2346 and 15-2486.
Before: MERRITT, BATCHELDER, and DONALD, Circuit Judges.
OPINION
ALICE M. BATCHELDER, Circuit Judge.
Like many states, Michigan has amended its Sex Offender

Does #1-5 v. Snyder, 834 F.3d 696 (2016)
Registration Act (SORA) on a number of occasions in recent years for the professed purpose of making Michigan communities safer and aiding law enforcement in the task of bringing recidivists to justice. Thus, what began in 1994 as a non-public registry maintained solely for law enforcement use, see Mich. Pub. Act 295, § 10 (1994), has grown into a byzantine code governing in minute detail the lives of the state’s sex offenders, see Mich. Comp. Laws § 28.723, et seq. Over the first decade or so of SORA’s existence, most of the changes centered on the role played by the registry itself. In 1999, for example, the legislature added the requirement that sex offenders register in person (either quarterly or annually, depending on the offense) and made the registry available online, providing the public with a list of all registered sex offenders’ *698 names, addresses, biometric data, and, since 2004, photographs. See Mich. Pub. Act. 85 §§ 5a(4), 8(2), 10(2)(3) (1999); Mich. Pub. Acts 237, 238 (2004). Michigan began taking a more aggressive tack in 2006, however, when it amended SORA to prohibit registrants (with a few exceptions, see Mich. Comp. Laws § 28.734–36) from living, working, or “loitering”1 within 1,000 feet of a school. See Mich. Pub. Acts 121, 127 (2005). In 2011, the legislature added the requirement that registrants be divided into three tiers, which ostensibly correlate to current dangerousness, but which are based, not on individual assessments, but solely on the crime of conviction. See Mich. Pub. Acts 17, 18 (2011). The 2011 amendments also require all registrants to appear in person “immediately” to update information such as new vehicles or “internet identifiers” (e.g., a new email account). See id. The 2006 and 2011 amendments apply retroactively to all who were required to register under SORA. See Mich. Pub. Act 46 (2006); Mich. Pub. Acts 17, 18 (2011). Violations carry heavy criminal penalties. See Mich. Comp. Laws § 28.729.
The Plaintiffs in this case—identified here only as five “John Does” and one “Mary Doe”—are registered “Tier III” sex offenders currently residing in Michigan. It is undisputed on appeal that SORA’s 2006 and 2011 amendments apply to them retroactively. That law has had a significant impact on each of them that reaches far beyond the stigma of simply being identified as a sex offender on a public registry. As a result of the school zone restrictions, for example, many of the Plaintiffs have had trouble finding a home in which they can legally live or a job where they can legally work. These restrictions have also kept those Plaintiffs who have children (or grandchildren) from watching them participate in school plays or on school sports teams, and they have kept Plaintiffs from visiting public playgrounds with their children for fear of “loitering.” Plaintiffs are also subject to the frequent inconvenience of reporting to law
2

enforcement in person whenever they change residences, change employment, enroll (or un-enroll) as a student, change their name, register a new email address or other “internet identifier,” wish to travel for more than seven days, or buy or begin to use a vehicle (or cease to own or use a vehicle). See Mich. Comp. Laws §§ 28.722(g), 725(1).
Plaintiffs sued Michigan Governor Richard Snyder and Colonel Kriste Etue, the director Michigan’s state police (collectively, “Michigan”), challenging SORA’s validity on a number of different grounds, including that portions of SORA are unconstitutionally vague, that its requirements should not be construed as creating strict liability offenses, that SORA violates the right to free speech guaranteed by the First Amendment, and that it violates the Fourteenth Amendment by imposing oppressive restrictions on Plaintiffs’ ability to parent, work, and travel. Plaintiffs also contended that SORA’s retroactive application to them—specifically, the retroactive application of the amendments that went into effect starting in 2006 or later—amounts to an Ex Post Facto punishment prohibited by the Constitution. See U.S. Const. art. I, § 10, cl. 1.
In a handful of opinions, including an opinion following from a Rule 52 bench trial, the district court concluded, among other things, that SORA was not an Ex Post Facto law and that most of its provisions did not violate the Constitution’s *699 guarantee of due process. It did conclude, however, that Plaintiffs were correct that some of SORA’s provisions were unconstitutionally vague, that those who are required to register under that law cannot be held strictly liable for violating its requirements, and that its retroactive requirement that sex offenders register on-line aliases for life violated the First Amendment. Both sides filed timely appeals, which we have consolidated.
We begin our analysis with the Ex Post Facto issue. As is the case with many of the Constitution’s guarantees— “due process of law,” “the freedom of speech,” “the right of the people to keep and bear arms”—the Ex Post Facto clause leaves unanswered foundational questions about the guarantee’s scope and means of enforcement. The document itself provides simply that “No State shall ... pass any ... ex post facto Law.” U.S. Const. art. I § 10, cl. 1. As with the other guarantees, it is the courts that have done most of the work in expounding the legal meaning of this provision—indeed, the Ex Post Facto clause was one of the first, if not the first, such constitutional question to be exposited by the Supreme Court, when it issued its 1798 decision in Calder v. Bull, 3 U.S. 386, 3 Dall. 386, 1 L.Ed. 648 (1798). That case, consistent with

Does #1-5 v. Snyder, 834 F.3d 696 (2016)
what scholars have identified as the majority position at the time of the founding, held that the Constitution’s ban on Ex Post Facto laws does not bar all retroactive lawmaking, but only retroactive punishment, a codification of what many in the founding generation believed to be a self-evident truth: nulle poena sine lege, no punishment without a law. See Calder, 3 U.S. at 388 (Opinion of Chase, J.) (explaining the Court’s holding that the Ex Post Facto clause prohibits only retroactive punishment and opining that such punishment was so “contrary to the great first principles of the social compact [that it could not] be considered a rightful exercise of legislative authority” even if there were no provision in the Constitution prohibiting it); see also David F. Forte, Ex Post Facto, in The Heritage Guide to the Constitution, 203, 203–04 (David F. Forte & Matthew Spalding, eds. 2d ed. 2014).
This understanding has kept courts from interfering with state sovereignty in many cases, but it has also provided a powerful check on states when they have sought to punish socially disfavored persons without prior notice. As Chief Justice John Marshall explained in Fletcher v. Peck:
Whatever respect might have been felt for the state sovereignties, it is not to be disguised that the framers of the constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment; and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed.
10 U.S. 87, 137–38, 6 Cranch 87, 3 L.Ed. 162 (1810). The guarantee is, as James Madison put it, a “constitutional bulwark in favour of personal security and private rights.” The Federalist No. 44, at 232 (James Madison) (The Gideon ed., George W. Carey & James McClellan eds., Liberty Fund 2001). As these quotations suggest, moreover, the distinction between civil regulation and criminal punishment has never been woodenly applied. “[I]t is the effect, not the form, of the law that determines whether it is ex post facto.” Weaver v. Graham, 450 U.S. 24, 31, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).
3

And while some have questioned the self-evidence of nulle poena sine lege, see, e.g., Calder, 3 U.S. at 399 (Opinion of Iredell, J.) (“The ideas of natural justice are regulated by no fixed standard: the *700 ablest and the purest men have differed upon the subject.”), and others have called into doubt the correctness of Calder’s civil/criminal distinction, see, e.g., Eastern Enterprises v. Apfel, 524 U.S. 498, 539, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998) (Thomas, J., concurring) (“I would be willing to reconsider Calder and its progeny to determine whether a retroactive civil law that passes muster under our current Takings Clause jurisprudence is nonetheless unconstitutional under the Ex Post Facto Clause.”), the test we must apply, as a lower court, is quite fixed: an ostensibly civil and regulatory law, such as SORA, does not violate the Ex Post Facto clause unless the plaintiff can show “by the clearest proof” that “what has been denominated a civil remedy” is, in fact, “a criminal penalty,” Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (citation and internal quotation marks omitted).
The Supreme Court’s decision in Smith is particularly germane to this case. In Smith, the Court considered an Ex Post Facto challenge to Alaska’s sex-offender registry law. Alaska’s regime was more modest than SORA, but the two share some core provisions: sex offenders residing in Alaska had to submit to annual or quarterly registration (though not in person) and had to give the State updates for such things as moving, growing a beard, changing hair color, or getting a new car. Id. at 90–91, 123 S.Ct. 1140; 101, 123 S.Ct. 1140. Like Michigan under SORA, Alaska maintained a website that published the offenders’ names, addresses, photos, physical descriptions, license numbers, places of employment, dates of birth, crimes of conviction, dates and places of conviction, and length of sentences, as well the offenders’ compliance with the registration requirements. Id. at 91, 123 S.Ct. 1140.
The Court in Smith concluded that Alaska’s law was civil, not criminal, employing a two-part test: (1) Did the legislature intend to impose punishment? And (2), if not, is the statutory scheme “ ‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” Id. at 92, 123 S.Ct. 1140 (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)) (brackets in original).
With respect to the first question, SORA, like the Alaska statute, includes a statement of purpose that evinces no punitive intent:

Does #1-5 v. Snyder, 834 F.3d 696 (2016)
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 officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders. The legislature has determined that a person who has been convicted of committing 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 of this 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.
Mich. Comp. Laws § 28.721a. And while Plaintiffs do point to some features that might suggest a punitive aim—e.g., SORA is triggered solely by criminal offenses and the registration requirement is recorded on the judgment; registration is handled by criminal justice agencies like the police; SORA imposes criminal sanctions; and it is codified in Chapter 28 of the Michigan Code, a chapter that deals with police-related laws—these are similar enough to the arguments rejected in Smith that we *701 see no warrant for concluding that SORA’s intent is punitive. See Smith, 538 U.S. at 95, 123 S.Ct. 1140.
We must therefore consider whether SORA’s actual effects are punitive. Out of the seven factors—nondispositive “guideposts”—that typically inform this inquiry, Smith identified five that are relevant in this kind of case:
(1) Does the law inflict what has been regarded in our history and traditions as punishment?
(2) Does it impose an affirmative disability or restraint?
(3) Does it promote the traditional aims of punishment?
4

(4) Does it have a rational connection to a nonpunitive purpose?
(5) Is it excessive with respect to this purpose?
Smith, 538 U.S. at 97, 123 S.Ct. 1140 (citing Kennedy v. Mendoza–Martinez, 372 U.S. 144, 168–69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)). We consider each factor in turn.
History and Tradition. As amici law professors point out, though SORA has no direct ancestors in our history and traditions, its restrictions do meet the general, and widely accepted, definition of punishment offered by legal philosopher H.L.A. Hart: (1) it involves pain or other consequences typically considered unpleasant; (2) it follows from an offense against legal rules; (3) it applies to the actual (or supposed) offender; (4) it is intentionally administered by people other than the offender; and (5) it is imposed and administered by an authority constituted by a legal system against which the offense was committed. See H.L.A. Hart, Punishment and Responsibility 4–5 (1968).
More specifically, SORA resembles, in some respects at least, the ancient punishment of banishment. True, it does not prohibit the registrant from setting foot in the school zones, and it certainly doesn’t make a registrant “dead in law [and] entirely cut off from society,” which is how Blackstone described the banished. 1 William Blackstone, Commentaries *132. But its geographical restrictions are nevertheless very burdensome, especially in densely populated areas. Consider, for example, this map of Grand Rapids, Michigan, prepared by one of Plaintiff’s expert witnesses:
*702
Sex Offenders are forced to tailor much of their lives around these school zones, and, as the record demonstrates, they often have great difficulty in finding a place where they may legally live or work. Some jobs that require traveling from jobsite to jobsite are rendered basically unavailable since work will surely take place

Does #1-5 v. Snyder, 834 F.3d 696 (2016)
within a school zone at some point. SORA’s requirements also resemble traditional shaming punishments. Unlike the law in Smith, which republished information that was already publically available, SORA ascribes and publishes tier classifications corresponding to the state’s estimation of present dangerousness without providing for any individualized assessment. These designations are unappealable, *703 and apply even to those whose offenses would not ordinarily be considered sex offenses. Doe # 1, for example, is on the registry because of a non-sexual kidnapping offense arising out of a 1990 robbery of a McDonald’s. In other cases, SORA discloses otherwise non-public information. Doe # 2, for example, is on the registry because, in 1996, when he was eighteen years old, he pled guilty under Michigan’s “Holmes Youthful Trainee Act,” Mich. Comp. Laws § 762.11, a record-sealing statute for young offenders, to “Criminal Sexual Conduct III” for having sex with a fourteen-year-old girl with whom he had a romantic relationship. But for SORA’s retroactive application to him, his criminal record would not be available to the public. Thus, unlike the statute in Smith, the ignominy under SORA flows not only from the past offense, but also from the statute itself.
Finally, SORA also resembles the punishment of parole/probation. In Smith, which involved nothing more than reporting requirements, the Court took seriously the claim that the Alaska statute resembled parole/probation, acknowledging that “[t]his argument has some force, but,” concluding that it was ultimately dissimilar because, unlike parolees, “offenders subject to the Alaska statute are free to move where they wish and to live and work as other citizens, with no supervision.” 538 U.S. at 101, 123 S.Ct. 1140. Under SORA, by contrast, registrants are subject to numerous restrictions on where they can live and work and, much like parolees, they must report in person, rather than by phone or mail. Failure to comply can be punished by imprisonment, not unlike a revocation of parole. And while the level of individual supervision is less than is typical of parole or probation, the basic mechanism and effects have a great deal in common. In fact, many of the plaintiffs have averred that SORA’s requirements are more intrusive and more difficult to comply with than those they faced when on probation.
In sum, while SORA is not identical to any traditional punishments, it meets the general definition of punishment, has much in common with banishment and public shaming, and has a number of similarities to parole/probation. This factor thus weighs in Plaintiffs’ favor.
Affirmative Disability or Restraint. As should be evident,
5

SORA requires much more from registrants than did the statute in Smith. Most significant is its regulation of where registrants may live, work, and “loiter.” As discussed above, these restrictions put significant restraints on how registrants may live their lives. Further, as also mentioned above, registrants must appear in person, both initially and for updates, and, if they are “Tier III” offenders, they must do so for life. These are direct restraints on personal conduct.
Michigan points out, however, that these restraints are not physical in nature and contends that the actual effects are therefore “minor and indirect” like those in the statute considered in Smith, 538 U.S. at 100, 123 S.Ct. 1140. But surely something is not “minor and indirect” just because no one is actually being lugged off in cold irons bound. Indeed, those irons are always in the background since failure to comply with these restrictions carries with it the threat of serious punishment, including imprisonment. These restraints are greater than those imposed by the Alaska statute by an order of magnitude. Cf. Smith, 538 U.S. at 101, 123 S.Ct. 1140 (noting, for example, that “[t]he Alaska statute, on its face, does not require these updates to be made in person”).
Michigan has a stronger point in noting that SORA’s restrictions are in some ways not as severe as complete occupation-disbarment, which has been held to be nonpunitive. Id. at 100, 123 S.Ct. 1140; see also *704 De Veau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960) (forbidding work as a union official); Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (1898) (revocation of a medical license). But no disbarment case we are aware of has confronted a law with such sweeping conditions or approved of disbarment without some nexus between the regulatory purpose and the job at issue. SORA’s restrictions are again far more onerous than those considered in Smith. And this factor too therefore weighs in Plaintiffs’ favor.
Traditional Aims of Punishment. SORA advances all the traditional aims of punishment: incapacitation, retribution, and specific and general deterrence. Its very goal is incapacitation insofar as it seeks to keep sex offenders away from opportunities to reoffend. It is retributive in that it looks back at the offense (and nothing else) in imposing its restrictions, and it marks registrants as ones who cannot be fully admitted into the community. Further, as discussed below, it does so in ways that relate only tenuously to legitimate, non-punitive purposes. Finally, its professed purpose is to deter recidivism (though, as discussed below, it does not in fact appear to do so), and it doubtless serves the purpose of general deterrence. See J.J. Prescott & Jonah E. Rockoff, Do Sex

Does #1-5 v. Snyder, 834 F.3d 696 (2016)
offender Registration and Notification Laws Affect Criminal Behavior?, 54 J.L. & Econ. 161 (2011).
Of course, many of these goals can also rightly be described as civil and regulatory. See Smith, 538 U.S. at 102, 123 S.Ct. 1140 (“Any number of governmental programs might deter crime without imposing punishment. To hold that the mere presence of a deterrent purpose renders such sanctions criminal would severely undermine the Government’s ability to engage in effective regulation.” (internal quotation marks and citation omitted)). And we accordingly give this factor little weight.
Rational Relation to a Non–Punitive Purpose. “The Act’s rational connection to a nonpunitive purpose is a ‘[m]ost significant’ factor in our determination that the statute’s effects are not punitive.” Id. (quoting United States v. Ursery, 518 U.S. 267, 290, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996)) (brackets in original). As in Smith, the legislative reasoning behind SORA is readily discernible: recidivism rates of sex offenders, according to both the Michigan legislature and Smith, are “frightening and high”; informing the public of sex offenders’ addresses, photos, tier rankings, etc. provides a mechanism to keep tabs on them with a view to preventing some of the most disturbing and destructive criminal activity; and school zones keep sex offenders away from the most vulnerable.
Intuitive as some may find this, the 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.’ ” 538 U.S. at 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 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. [R. 90 at 3846–49]. In fact, one statistical analysis in the record concluded that laws such as SORA actually increase the risk of recidivism, *705 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.
6

And while it is intuitive to think that at least some sex offenders—e.g., the stereotypical playground-watching pedophile—should be kept away from schools, the statute makes no provision for individualized assessments of proclivities or dangerousness, even though the danger to children posed by some—e.g., Doe # 1, who never committed a sexual offense—is doubtless far less than that posed by a serial child molester.
Excessiveness. 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. [R. 90 at 3768–69]. 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.
So, is SORA’s actual effect punitive? Many states confronting similar laws have said “yes.” See, e.g., Doe v. State, 167 N.H. 382, 111 A.3d 1077, 1100 (2015); State v. Letalien, 985 A.2d 4, 26 (Me. 2009); Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999, 1017 (Alaska 2008). And we agree. In reaching this conclusion, we are mindful that, as Smith makes clear, states are free to pass retroactive sexoffender registry laws and that those challenging an ostensibly non-punitive civil law must show by the “clearest proof” that the statute in fact inflicts punishment. But difficult is not the same as impossible. Nor should Smith be understood as writing a blank check to states to do whatever they please in this arena.
A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by—at best—scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s firstgeneration registry law. SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own

Does #1-5 v. Snyder, 834 F.3d 696 (2016)

families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.
We conclude that Michigan’s SORA imposes punishment. And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased. Indeed, the fact that sex offenders are so widely feared and disdained *706 by the general public implicates the core counter-majoritarian principle embodied in the Ex Post Facto clause. As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice. Such lawmaking has “been, in all ages, [a] favorite and most formidable instrument[ ] of tyranny.” The Federalist No. 84, supra at 444 (Alexander Hamilton). It is, as Justice Chase argued, incompatible with both the words of the Constitution and the underlying first principles of “our free republican governments.” Calder, 3 U.S. at 388–89; accord The Federalist No. 44, supra at 232

(James Madison) (“[E]x post facto laws ... are contrary to the first principles of the social compact, and to every principle of sound legislation.”). The retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.
As we have explained, this 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. These questions, however, will have to wait for another day because none of the contested provisions may now be applied to the plaintiffs in this lawsuit, and anything we would say on those other matters would be dicta. We therefore reverse the district court’s decision that SORA is not an Ex Post Facto law and remand for entry of judgment consistent with this opinion.
All Citations
834 F.3d 696

Footnotes

1

SORA defines “loiter” as “to remain [in a place] for a period of time and under circumstances that a reasonable person would

determine is for the primary purpose of observing or contacting minors.” Mich. Comp. Laws § 28.733(b).

End of Document

7

 
 Case: 2:12-cv-11194-RHC-DRG As of: 03/14/2019 10:49 AM EDT 1 of 18
CLOSED,APPEAL,REOPENED
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:12−cv−11194−RHC−DRG

Does et al v. SNYDER et al Assigned to: District Judge Robert H. Cleland Referred to: Magistrate Judge David R. Grand Case in other court: U.S. Court of Appeals − Sixth Circuit,
15−01536/2346/2486
U.S. Court of Appeals − Sixth Circuit, 15−01604 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 03/16/2012 Date Terminated: 01/26/2018 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

John Does 1−5

represented by Douglas R. Mullkoff Kessler & Mullkoff 402 W. Liberty Street Ann Arbor, MI 48103 734−761−8585 Email: doug@kmhlaw.com ATTORNEY TO BE NOTICED

Marc Sebastian Allen American Civil Liberties Union of Michigan 1514 Wealthy St, SE Suite 242 Grand Rapids, MI 49506 616−301−0930 Fax: 616−301−0640 Email: mallen@aclumich.org ATTORNEY TO BE NOTICED

Michael J. Steinberg American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 313−578−6814 Email: msteinberg@aclumich.org ATTORNEY TO BE NOTICED

Miriam J. Aukerman American Civil Liberties Union of Michigan West Michigan Regional Office 1514 Wealth St., SE Grand Rapids, MI 49506 616−301−0930 Email: maukerman@aclumich.org ATTORNEY TO BE NOTICED

Sofia V. Nelson State Appellate Defender Office 645 Griswold Suite 3300 Detroit, MI 48226 3134202955 Email: snelson@sado.org TERMINATED: 08/28/2015 ATTORNEY TO BE NOTICED

William W. Swor

Case: 2:12-cv-11194-RHC-DRG As of: 03/14/2019 10:49 AM EDT 2 of 18

645 Griswold Street Suite 3060 Detroit, MI 48226 313−967−0200 Email: wwswor@wwnet.net ATTORNEY TO BE NOTICED

Paul D. Reingold University of Michigan 801 Monroe Street 363 Legal Research Bldg Ann Arbor, MI 48109 734−763−4319 Email: mclp@umich.edu ATTORNEY TO BE NOTICED

Plaintiff Mary Doe

represented by Douglas R. Mullkoff (See above for address) ATTORNEY TO BE NOTICED

Marc Sebastian Allen (See above for address) ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) ATTORNEY TO BE NOTICED

Miriam J. Aukerman (See above for address) ATTORNEY TO BE NOTICED

Sofia V. Nelson (See above for address) TERMINATED: 08/28/2015 ATTORNEY TO BE NOTICED

William W. Swor (See above for address) ATTORNEY TO BE NOTICED

Paul D. Reingold (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff John Doe #5

represented by Douglas R. Mullkoff (See above for address) ATTORNEY TO BE NOTICED
Marc Sebastian Allen (See above for address) ATTORNEY TO BE NOTICED
Miriam J. Aukerman (See above for address) ATTORNEY TO BE NOTICED
Paul D. Reingold (See above for address)

Case: 2:12-cv-11194-RHC-DRG As of: 03/14/2019 10:49 AM EDT 3 of 18

ATTORNEY TO BE NOTICED

Intervenor Plaintiff Curwood Lewis Price

represented by Curwood Lewis Price 220572 18980 Fendton Street Detroit, MI 48219 PRO SE

Intervenor Plaintiff John M. Pontious

represented by John M. Pontious 203480 18980 Fenton Street Detroit, MI 48219 PRO SE

Intervenor Plaintiff Timothy P. Gronsyan

represented by Timothy P. Gronsyan 418904 18980 Fenton Street Detroit, MI 48219 PRO SE

Intervenor Plaintiff Robert B. Hudson

represented by Robert B. Hudson 207575 18980 Fenton Street Detroit, MI 48219 PRO SE

Intervenor Plaintiff Homer L. Garren

represented by Homer L. Garren 532676 18980 Fenton Street Detroit, MI 48219 PRO SE

Intervenor Plaintiff Robert J. Blythe

represented by Robert J. Blythe 794323 18980 Fenton Street Detroit, MI 48219 PRO SE

V. Defendant RICHARD D. SNYDER

represented by Adam P. Sadowski Michigan Department of Attorney General Complex Litigation Division 525 W. Ottawa Street PO Box 30736 Lansing, MI 48909 517−335−3055 Fax: 517−335−7157 Email: ag−complex@michigan.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erik A. Grill

Case: 2:12-cv-11194-RHC-DRG As of: 03/14/2019 10:49 AM EDT 4 of 18

Michigan Department of Insurance and Financial Srvs P.O. Box 30220 530 W Allegan, 8th Floor Lansing, MI 48909 517−284−8781 Fax: 517−284−8851 Email: grille@michigan.gov TERMINATED: 11/17/2017 ATTORNEY TO BE NOTICED

Margaret A. Nelson Michigan Department of Attorney General Civil Litigation, Employment & Elections Division P.O. Box 30736 Lansing, MI 48909 517−335−3055 Email: nelsonm23@michigan.gov TERMINATED: 04/23/2013 ATTORNEY TO BE NOTICED

Defendant Col. KRISTE ETUE

represented by Adam P. Sadowski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erik A. Grill (See above for address) TERMINATED: 11/17/2017 ATTORNEY TO BE NOTICED

Margaret A. Nelson (See above for address) TERMINATED: 04/23/2013 ATTORNEY TO BE NOTICED

Date Filed 03/16/2012
03/16/2012 03/16/2012 03/16/2012

# Docket Text
1 COMPLAINT filed by John Does 1−4, Mary Doe against KRISTE ETUE, RICHARD D. SNYDER. Plaintiff requests summons issued. Receipt No: 0645−3440001 − Fee: &#036 350. County of 1st Plaintiff: Wayne − County Where Action Arose: Wayne − County of 1st Defendant: Ingham. [Previously dismissed case: No] [Possible companion case(s): None] (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit Ex. 1 Obligations, Disabilitis and Restraints Imposed, # 3 Exhibit Ex. 2 Declaration of John Doe 1, # 4 Exhibit Ex. 3 Declaration of John Doe 2, # 5 Exhibit Ex. 4 Declaration of John Doe 3, # 6 Exhibit Ex. 5 Declaration of John Doe 4, # 7 Exhibit Ex. 6 Declaration of Mary Doe, # 8 Exhibit Ex. 7 Declaration of I.G., # 9 Exhibit Ex. 8 Declaration of Dr. JJ Prescott, # 10 Exhibit Ex. 9 Declaration of Dr. Jill Levenson, # 11 Exhibit Ex. 10 Declaration of Dr. Janet Fay−Dumaine, # 12 Exhibit Ex. 11 Declaration of Peter Wagner, # 13 Exhibit Ex. 12 Declaration of Anne Yantus, # 14 Exhibit Ex. 13 Texas Association of Cunties Report) (Reingold, Paul) (Entered: 03/16/2012)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (KKra) (Entered: 03/16/2012)
2 SUMMONS Issued for *KRISTE ETUE* (KKra) (Entered: 03/16/2012)
3 SUMMONS Issued for *RICHARD D. SNYDER* (KKra) (Entered: 03/16/2012)

Case: 2:12-cv-11194-RHC-DRG As of: 03/14/2019 10:49 AM EDT 5 of 18

03/16/2012 03/16/2012 03/16/2012 03/19/2012 03/28/2012 03/28/2012 04/06/2012 04/18/2012 04/23/2012 04/23/2012 04/24/2012 04/24/2012 05/01/2012 05/01/2012 05/14/2012 05/14/2012
05/18/2012
05/18/2012 05/25/2012

4 MOTION Proceed Anonymously re 1 Complaint,,,, by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit Ex A Proposed Protective Order, # 3 Exhibit Ex B Articles on Sex Offender) (Reingold, Paul) (Entered: 03/16/2012)
5 NOTICE of Appearance by Michael J. Steinberg on behalf of All Plaintiffs. (Steinberg, Michael) (Entered: 03/16/2012)
6 NOTICE of Appearance by Miriam J. Aukerman on behalf of All Plaintiffs. (Aukerman, Miriam) (Entered: 03/16/2012)
7 NOTICE of Appearance by William W. Swor on behalf of All Plaintiffs. (Swor, William) (Entered: 03/19/2012)
8 NOTICE of Appearance by Margaret A. Nelson on behalf of All Defendants. (Nelson, Margaret) (Entered: 03/28/2012)
9 NOTICE of Appearance by Erik A. Grill on behalf of All Defendants. (Grill, Erik) (Entered: 03/28/2012)
10 STIPULATION AND ORDER Extending Time to File Answer and Response to Motion until April 20, 2012. Signed by District Judge Robert H. Cleland. (Chubb, A) (Entered: 04/06/2012)
11 ORDER granting 4 Motion to Proceed Anonymously and Directing Parties to Submit Stipulated Protective Order. Signed by District Judge Robert H. Cleland. (Werner, L) (Entered: 04/18/2012)
12 MOTION for Leave to File Excess Pages by KRISTE ETUE, RICHARD D. SNYDER. (Nelson, Margaret) (Entered: 04/23/2012)
13 MOTION to Dismiss and Brief in Support by KRISTE ETUE, RICHARD D. SNYDER. (Nelson, Margaret) (Entered: 04/23/2012)
14 Amended MOTION to Dismiss and Brief in Support by KRISTE ETUE, RICHARD D. SNYDER. (Nelson, Margaret) (Entered: 04/24/2012)
TEXT−ONLY ORDER GRANTING 12 MOTION for Leave to File Excess Pages filed by RICHARD D. SNYDER, KRISTE ETUE. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 04/24/2012)
15 STIPULATED ORDER FOR Second Extension of time for response to plaintiffs' complaint to 4/23/2012 Signed by District Judge Robert H. Cleland. (LWag) (Entered: 05/01/2012)
16 STIPULATED PROTECTIVE ORDER Signed by District Judge Robert H. Cleland. (LWag) (Entered: 05/01/2012)
17 MOTION for Leave to File Excess Pages by All Plaintiffs. (Reingold, Paul) (Entered: 05/14/2012)
18 [STRICKEN] RESPONSE to 14 Amended MOTION to Dismiss and Brief in Support filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit14 Attorney General Letter, # 2 Exhibit Exhibit 15 MIRS Reports, # 3 Exhibit Exhibit 16 Mikaloff, # 4 Exhibit Exhibit 17 Elwell, # 5 Exhibit Exhibit 18 Whitaker, # 6 Exhibit Exhibit 19 Blood Legislative Report, # 7 Exhibit Exhibit 20 MN DOC Report, # 8 Exhibit Exhibit 21 Iowa County Attorneys Association, # 9 Exhibit Exhibit 22 Misguided Measures) (Steinberg, Michael) Modified on 5/18/2012 (LWag). (Entered: 05/14/2012)
19 ORDER STRIKING 18 Response to Motion, filed by Mary Doe, John Does, AND GRANTING IN PART 17 MOTION for Leave to File Excess Pages filed by Mary Doe, John Does. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 05/18/2012)
20 NOTICE of hearing on 14 Amended MOTION to Dismiss and Brief in Support. Motion Hearing set for 7/11/2012 02:00 PM before District Judge Robert H. Cleland (LWag) (Entered: 05/18/2012)
21 RESPONSE to 14 Amended MOTION to Dismiss and Brief in Support filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit14 Attorney General Letter, # 2 Exhibit Exhibit 15 MIRS Reports, # 3 Exhibit Exhibit 16 Mikaloff, # 4 Exhibit Exhibit 17

Case: 2:12-cv-11194-RHC-DRG As of: 03/14/2019 10:49 AM EDT 6 of 18

06/12/2012 06/15/2012 06/15/2012 06/18/2012 06/19/2012 06/27/2012 08/08/2012
02/01/2013 03/18/2013 04/02/2013 04/16/2013 04/23/2013 04/23/2013 06/03/2013
06/17/2013 06/17/2013 08/05/2013 08/05/2013

Elwell, # 5 Exhibit Exhibit 18 Whitaker, # 6 Exhibit Exhibit 19 Blood Watson Report, # 7 Exhibit Exhibit 20 Minn DOC, # 8 Exhibit Exhibit 21 Iowa County Attorneys Association, # 9 Exhibit Exhibit 22 Misguided Measures) (Aukerman, Miriam) (Entered: 05/25/2012)
22 STIPULATION AND ORDER Extending time to file a reply brief as to as to 14 Amended MOTION to Dismiss and Brief in Support :( Replies due by 6/15/2012) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 06/12/2012)
23 MOTION for Leave to File Excess Pages for a Reply Brief by KRISTE ETUE, RICHARD D. SNYDER. (Nelson, Margaret) (Entered: 06/15/2012)
24 REPLY to Response re 14 Amended MOTION to Dismiss and Brief in Support filed by KRISTE ETUE, RICHARD D. SNYDER. (Nelson, Margaret) (Entered: 06/15/2012)
25 EXHIBIT A − re 24 Reply to Response to Motion by KRISTE ETUE, RICHARD D. SNYDER (Nelson, Margaret) (Entered: 06/18/2012)
TEXT−ONLY ORDER GRANTING 23 MOTION for Leave to File Excess Pages for a Reply Brief filed by RICHARD D. SNYDER, KRISTE ETUE. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 06/19/2012)
Set/Reset Deadlines as to 14 Amended MOTION to Dismiss and Brief in Support. Motion Hearing re−set for 8/8/2012 02:00 PM before District Judge Robert H. Cleland (LWag) (Entered: 06/27/2012)
Minute Entry − Motion Hearing held on 8/8/2012 re 14 Amended MOTION to Dismiss and Brief in Support filed by RICHARD D. SNYDER, KRISTE ETUE before District Judge Robert H. Cleland. DISPOSITION: TAKEN UNDER ADVISEMENT (Court Reporter Christin Russell) (LWag) (Entered: 08/08/2012)
26 SUPPLEMENTAL BRIEF re 14 Amended MOTION to Dismiss and Brief in Support, 21 Response to Motion,, filed by All Plaintiffs. (Reingold, Paul) (Entered: 02/01/2013)
27 OPINION AND ORDER granting in part and denying in part 14 Defendant's Amended Motion to Dismiss. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 03/18/2013)
28 ANSWER to Complaint with Affirmative Defenses by KRISTE ETUE, RICHARD D. SNYDER. (Grill, Erik) (Entered: 04/02/2013)
29 NOTICE TO APPEAR : Scheduling Conference set for 4/23/2013 10:00 AM before District Judge Robert H. Cleland (LWag) (Entered: 04/16/2013)
Minute Entry − Scheduling Conference held on 4/23/2013 before District Judge Robert H. Cleland. (LWag) (Entered: 04/23/2013)
Attorney Margaret A. Nelson is discontinued from receiving Notices of Electronic Filing. Reason: no longer associated with this case. (Nelson, Margaret) (Entered: 04/23/2013)
30 SCHEDULING ORDER: Discovery due by 12/3/2013 Dispositive Motion Cut−off set for 1/6/2014 Final Pretrial Conference set for 3/10/2014 02:00 PM before District Judge Robert H. Cleland Bench Trial set for 3/24/2014 09:00 AM before District Judge Robert H. Cleland Signed by District Judge Robert H. Cleland. (Refer to image for additional dates) (LWag) (Entered: 06/03/2013)
31 Plaintiffs' Preliminary WITNESS LIST by All Plaintiffs (Reingold, Paul) (Entered: 06/17/2013)
32 Preliminary WITNESS LIST by KRISTE ETUE, RICHARD D. SNYDER (Grill, Erik) (Entered: 06/17/2013)
33 [STRICKEN] CERTIFICATE OF SERVICE by All Plaintiffs (Aukerman, Miriam) Modified on 8/5/2013 (PMil). (Entered: 08/05/2013)
NOTICE of Error directed to: Miriam J. Aukerman re 33 Certificate of Service. Document is prohibited discovery, disclosure or a certificate of service thereof.

Case: 2:12-cv-11194-RHC-DRG As of: 03/14/2019 10:49 AM EDT 7 of 18

08/27/2013 09/03/2013 09/16/2013 09/30/2013 10/04/2013 10/15/2013 10/15/2013 10/17/2013 11/08/2013 11/19/2013 11/19/2013 11/27/2013 12/02/2013
12/02/2013 12/03/2013
12/06/2013

Document was stricken. [No Image Associated with this docket entry] (PMil) (Entered: 08/05/2013)
34 STIPULATED ORDER Permitting Intervenor John Doe #5 to be Added to the Case and to File an Intervenor's Complaint. Signed by District Judge Robert H. Cleland. (KKra) (Entered: 08/27/2013)
35 INTERVENOR COMPLAINT of John Doe #5 filed by John Doe #5 against John Doe #5. (Reingold, Paul) Modified on 9/4/2013 (PMil).[INTERVENOR COMPLAINT FILED BY JOHN DOE AGAINST ALL DEFENDANTS] (Entered: 09/03/2013)
36 ANSWER to Intervenor Complaint with Affirmative Defenses by KRISTE ETUE, RICHARD D. SNYDER. (Grill, Erik) (Entered: 09/16/2013)
37 AFFIDAVIT of John Doe # 5 verification re 35 Intervenor Complaint by John Doe #5 (Reingold, Paul) (Entered: 09/30/2013)
38 STIPULATED ORDER for Extension of time for plaintiffs to provide expert report of Peter Wagner and for defendants to provide any responsive expert report. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 10/04/2013)
39 DECLARATION by John Doe IV re 1 Complaint,,,, Amended filed by John Does (Aukerman, Miriam) (Entered: 10/15/2013)
40 DECLARATION by I.G. re 1 Complaint,,,, Amended filed by All Plaintiffs (Aukerman, Miriam) (Entered: 10/15/2013)
41 DECLARATION by John Doe IV and I.G. re 1 Complaint,,,, Amended filed by John Does (Aukerman, Miriam) (Entered: 10/17/2013)
42 Joint MOTION Extension of time and amendment of complaint by All Plaintiffs. (Aukerman, Miriam) (Entered: 11/08/2013)
43 WITNESS LIST by KRISTE ETUE, RICHARD D. SNYDER (Grill, Erik) (Entered: 11/19/2013)
44 FINAL WITNESS LIST by Mary Doe, John Doe #5, John Does (Aukerman, Miriam) (Entered: 11/19/2013)
45 STIPULATION AND ORDER granting 42 Joint Motion Extending Discovery and other Dates Discovery cutoff 1/3/2014 and Dispositive Motion Deadline is 2/6/2014. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 11/27/2013)
46 AMENDED COMPLAINT filed by John Does, John Doe #5, Mary Doe against John Does, John Doe #5, Mary Doe. NO NEW PARTIES ADDED. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1: Obligations, Disabilities and Restraints, # 3 Exhibit 2: Doe 1 Declaration, # 4 Exhibit 3: Doe 2 Declaration, # 5 Exhibit 4: Doe 3 Declaration, # 6 Exhibit 5: Amended Doe 4 Declaration, # 7 Exhibit 6: Mary Doe Declaration, # 8 Exhibit 7: Amended I.G. Declaration, # 9 Exhibit 8: Prescott Declaration, # 10 Exhibit 9: Levenson Declaration, # 11 Exhibit 10: Fay−Dumaine Declaration, # 12 Exhibit 11: Wagner Declaration, # 13 Exhibit 12: Yantus Declaration, # 14 Exhibit 13: Texas Study, # 15 Exhibit 14: Doe 5 Declaration, # 16 Exhibit 15: Public Act 149) (Aukerman, Miriam) (Entered: 12/02/2013)
47 MOTION to Compel Access to MSP Training on New Sex Offender Data Management System by Mary Doe, John Doe #5, John Does. (Attachments: # 1 Exhibit A: MSP Letter, # 2 Exhibit B: Discovery Request) (Aukerman, Miriam) (Entered: 12/02/2013)
Minute Entry for proceedings held before District Judge Robert H. Cleland: Telephonic Status Conference held on 12/3/2013. Disposition: Consideration of Plaintiff's Motion to Compel [Dkt #47] is suspended pending discussion between the parties airmed at resolution of the dispute. Plaintiff's Counsel is DIRECTED to update the court regarding the status of discussions by 12/6/2013. (LWag) (Entered: 12/03/2013)
48 STIPULATION AND ORDER Regarding 47 Plaintiffs' Motion to Compel Access to Michigan State Police Training on Sex Offender Registration Data Management System. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 12/06/2013)

Case: 2:12-cv-11194-RHC-DRG As of: 03/14/2019 10:49 AM EDT 8 of 18

12/16/2013 01/28/2014 01/31/2014 02/04/2014 02/14/2014 02/17/2014 02/20/2014 02/20/2014 02/20/2014 02/20/2014 02/20/2014
02/20/2014
02/20/2014
02/20/2014 02/20/2014
02/20/2014

49 ANSWER to Amended Complaint with Affirmative Defenses by KRISTE ETUE, RICHARD D. SNYDER. (Grill, Erik) (Entered: 12/16/2013)
50 Joint MOTION TO EXTEND Time to File Dispositive Motions by Mary Doe, John Doe #5, John Does. (Aukerman, Miriam) (Entered: 01/28/2014)
51 ORDER granting 50 Motion to Extend Deadline for Dispositive Motions to 2/20/2014.. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 01/31/2014)
52 NOTICE of Appearance by Sofia V. Nelson on behalf of All Plaintiffs. (Nelson, Sofia) (Entered: 02/04/2014)
53 MOTION for Leave to File Excess Pages by KRISTE ETUE, RICHARD D. SNYDER. (Grill, Erik) (Entered: 02/14/2014)
54 MOTION for Leave to File Excess Pages on Motion for Summary Judgment by Mary Doe, John Doe #5, John Does. (Aukerman, Miriam) (Entered: 02/17/2014)
55 ORDER granting 54 Plaintiffs' Motion for Leave to File Brief with Excess Pages in support of the Motion for Summary Judgment.. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 02/20/2014)
56 STIPULATION AND ORDER Authorizing Filing Exhibits under Seal. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 02/20/2014)
57 ORDER granting 53 Defendants' Motion for Leave to File Excess Pages. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 02/20/2014)
58 MOTION for Summary Judgment by Mary Doe, John Doe #5, John Does. (Attachments: # 1 Statement of Material Facts, # 2 Index of Exhibits) (Aukerman, Miriam) (Entered: 02/20/2014)
59 EXHIBIT 1: John Doe #1 Deposition re 58 MOTION for Summary Judgment by Mary Doe, John Doe #5, John Does (Attachments: # 1 Exhibit 2: John Doe #2 Deposition, # 2 Exhibit 3: John Doe #3 Deposition, # 3 Exhibit 4: John Doe #4 Deposition, # 4 Exhibit 5: John Doe #5 Deposition, # 5 Exhibit 6: Mary Doe Deposition, # 6 Exhibit 7: I.G. Deposition, # 7 Exhibit 8: S.F. Deposition) (Aukerman, Miriam) (Entered: 02/20/2014)
60 EXHIBIT 9: Levenson Deposition re 58 MOTION for Summary Judgment by Mary Doe, John Doe #5, John Does (Attachments: # 1 Exhibit 10: Prescott Deposition, # 2 Exhibit 11: P. Wagner Deposition, # 3 Exhibit 12: Fay−Dumaine Deposition, # 4 Exhibit 13: Stapleton Deposition, # 5 Exhibit 14: Poxson Deposition, # 6 Exhibit 15: Johnson Deposition, # 7 Exhibit 16: Burchell Deposition, # 8 Exhibit 17: Payne Deposition) (Aukerman, Miriam) (Entered: 02/20/2014)
61 EXHIBIT 18: L. Wagner Deposition re 58 MOTION for Summary Judgment by Mary Doe, John Doe #5, John Does (Attachments: # 1 Exhibit 19: Hawkins Deposition, # 2 Exhibit 20: Yantus Deposition, # 3 Exhibit 21: Tanner Deposition, # 4 Exhibit 22: Prescott Expert Report, # 5 Exhibit 23: Levenson Expert Report, # 6 Exhibit 24: Fay−Dumaine Expert Report) (Aukerman, Miriam) (Entered: 02/20/2014)
62 EXHIBIT 25: P. Wagner 1st Expert Report re 58 MOTION for Summary Judgment by Mary Doe, John Doe #5, John Does (Attachments: # 1 Exhibit 26: P. Wagner 2nd Expert Report) (Aukerman, Miriam) (Entered: 02/20/2014)
63 EXHIBIT 27: Yantus Expert Report re 58 MOTION for Summary Judgment by Mary Doe, John Doe #5, John Does (Attachments: # 1 Exhibit 28: Stapleton Expert Report, # 2 Exhibit 29: John Doe # 5 Declaration (Second), # 3 Exhibit 30: Mary Doe Declaration (Second), # 4 Exhibit 31: Amended Declaration of I.G., # 5 Exhibit 32: Poxson Declaration, # 6 Exhibit 33: Granzotto Declaration) (Aukerman, Miriam) (Entered: 02/20/2014)
64 EXHIBIT 34: Summary of Obligations, Disabilities and Restraints Imposed by SORA 2013 re 58 MOTION for Summary Judgment by Mary Doe, John Doe #5, John Does (Attachments: # 1 Exhibit 35: Plaintiffs' Response to Defendants' Interrogatory 11, # 2 Exhibit 36: Doe #1 Interrogatory Responses, # 3 Exhibit 37: Doe #2 Interrogatory Responses, # 4 Exhibit 38: Doe #3 Interrogatory Responses, # 5 Exhibit 39: Doe #4

Case: 2:12-cv-11194-RHC-DRG As of: 03/14/2019 10:49 AM EDT 9 of 18

02/20/2014 02/20/2014
02/20/2014 02/20/2014 02/20/2014 02/20/2014
02/20/2014 02/20/2014

Interrogatory Responses, # 6 Exhibit 40: Doe #5 Interrogatory Responses, # 7 Exhibit 41: Mary Doe Interrogatory Responses, # 8 Exhibit 42: Defendants' Responses to Plaintiffs' First Interrogatories, # 9 Exhibit 43: Defendants' Supplemental Responses to Plaintiffs' First Interrogatories) (Aukerman, Miriam) (Entered: 02/20/2014)
65 EXHIBIT 44: Defendants' Answers to Plaintiffs' First Requests for Admission re 58 MOTION for Summary Judgment by Mary Doe, John Doe #5, John Does (Attachments: # 1 Exhibit 45: MSP SORA Charging Data, # 2 Exhibit 46: MSP SORA Conviction Data, # 3 Exhibit 47: MSP Official Order 79, # 4 Exhibit 48: Tier III Notification Letter, # 5 Exhibit 49: SOR Unit Student Safety Zone Cheatsheet, # 6 Exhibit 50: Offender Watch User Manual) (Aukerman, Miriam) (Entered: 02/20/2014)
66 EXHIBIT 51: OffenderWatch Express Description re 58 MOTION for Summary Judgment by Mary Doe, John Doe #5, John Does (Attachments: # 1 Exhibit 52: OffenderWatch Contract, # 2 Exhibit 53: Total Number on SOR by Year, # 3 Exhibit 54: Total Number of Offenders by Tier, # 4 Exhibit 55: Roster of MSP/SOR Unit Staff, # 5 Exhibit 56: MSP List of SORA Coordinators, # 6 Exhibit 57: Sample SOR Letter to Registrant, # 7 Exhibit 58: MSP Sex Offender Registry and Enforcement Training Powerpoint 2011, # 8 Exhibit 59: Tanner Sex Offender Registry Training 2013 for Prosecutors, # 9 Exhibit 60: Tanner Sex Offender Registry Training 2011 for Prosecutors, # 10 Exhibit 61: Registration Length June/August 2011, # 11 Exhibit 62: Explanation of Duties Form) (Aukerman, Miriam) (Entered: 02/20/2014)
67 EXHIBIT 63: Doe #2 MSP Criminal History Print−Out re 58 MOTION for Summary Judgment by Mary Doe, John Doe #5, John Does (Attachments: # 1 Exhibit 64: Doe #2 Public Sex Offender Registry Print−Out, # 2 Exhibit 65: Doe #2 DD−214 Certificate of Release or Discharge from Active Duty, # 3 Exhibit 66: Affidavit of Victim in Case of Doe #2, # 4 Exhibit 67: Fiscal Year 2014 SOR Unit Budget, # 5 Exhibit 68: OffenderWatch Training Video Transcript) (Aukerman, Miriam) (Entered: 02/20/2014)
68 [STRICKEN] MOTION for Summary Judgment by KRISTE ETUE, RICHARD D. SNYDER. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit A. State v. Husband, # 3 Exhibit B. School Cuts Spur Michigan Conflict, # 4 Exhibit C. Mueller v. Raemisch) (Grill, Erik) Modified on 3/3/2014 (LWag). (Entered: 02/20/2014)
69 SEALED EXHIBIT 69: Doe #4 Busted Newspaper re 58 MOTION for Summary Judgment by Mary Doe, John Doe #5, John Does. (Attachments: # 1 Exhibit 70: Doe #4 Death Threat) (Aukerman, Miriam) (Entered: 02/20/2014)
70 EXHIBIT 71: Doe v. Thompson re 58 MOTION for Summary Judgment by Mary Doe, John Doe #5, John Does (Attachments: # 1 Exhibit 72: Cost Benefit Analyses of SORNA Implementation, # 2 Exhibit 73: California AWA Position Statement, # 3 Exhibit 74: Colorado AWA White Paper, # 4 Exhibit 75: Texas Study of Costs to Local Government of Implementing AWA, # 5 Exhibit 76: Senate Fiscal Agency Analysis for S.B. 221, # 6 Exhibit 77: Pew Research Center Email Article, # 7 Exhibit 78: Hanson Study, # 8 Exhibit 79: Hanson Declaration, # 9 Exhibit 80: Sex Offender Sexual Recidivism Risk Levels Over Time Graph, # 10 Exhibit 81: Collateral Damage:) (Aukerman, Miriam) (Entered: 02/20/2014)
71 EXHIBIT 82: DOJ Evaluation of Sex Offender Residency Restrictions re 58 MOTION for Summary Judgment by Mary Doe, John Doe #5, John Does (Attachments: # 1 Exhibit 83: SOR Unit Manual, # 2 Exhibit 84: Judgment of Sentence Form, # 3 Exhibit 85: Doe #2 Order Amending Probation, # 4 Exhibit 86: Doe #3 Order of Probation, # 5 Exhibit 87: MSP Memo re Operation Verify, # 6 Exhibit 88: Legislative Analysis of P.A. 542 (2002), # 7 Exhibit 89: Regional Jail Feasibility Study) (Aukerman, Miriam) (Entered: 02/20/2014)
72 EXHIBIT 90: State of Michigan Prison Costs re 58 MOTION for Summary Judgment by Mary Doe, John Doe #5, John Does (Attachments: # 1 Exhibit 91: SMART SORNA States Listing, # 2 Exhibit 92: Legislative Service Bureau Report on SORA, # 3 Exhibit 93: MSP News Release on Sweeps, # 4 Exhibit 94: Michigan Attorney General Letter on Student Safety Zones, # 5 Exhibit 95: SMART Confirmation of Michigan's Substantial Compliance, # 6 Exhibit 96: Byrne Fund Reports 2011, # 7 Exhibit 97: Michigan S.B. 76 and 77, # 8 Exhibit 98: Defendants' 2nd Supplemental Responses to Plaintiffs 1st Interrogatories) (Aukerman, Miriam) (Entered: 02/20/2014)

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02/20/2014
02/20/2014
02/20/2014
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73 APPENDIX re: 68 MOTION for Summary Judgment filed by RICHARD D. SNYDER, KRISTE ETUE. by KRISTE ETUE, RICHARD D. SNYDER (Attachments: # 1 Exhibit A. Deposition of Sgt. Bruce Payne, # 2 Exhibit B. Deposition of Trooper Timothy Burchell, # 3 Exhibit C. Deposition of Leslie Wagner, # 4 Exhibit D. Deposition of Herbert Tanner, # 5 Exhibit E. Deposition of Karen Johnson Vol. I, # 6 Exhibit F. Deposition of Karen Johnson Vol. II, # 7 Exhibit G. Deposition of Lt. Chris Hawkins, # 8 Exhibit H. Deposition of John Doe #1, # 9 Exhibit I. Deposition of John Doe #2, # 10 Exhibit J. Deposition of John Doe #3, # 11 Exhibit K. Deposition of S.F., # 12 Exhibit L. Deposition of John Doe #4, # 13 Exhibit M. Deposition of John Doe #5, # 14 Exhibit N. Deposition of Mary Doe) (Grill, Erik) (Entered: 02/20/2014)
74 APPENDIX re: 68 MOTION for Summary Judgment filed by RICHARD D. SNYDER, KRISTE ETUE. by KRISTE ETUE, RICHARD D. SNYDER (Attachments: # 1 Exhibit O. Letter Announcing Offender Watch dated 10/24/13, # 2 Exhibit P. SMART Substantial Implementation Review dated 5/9/11, # 3 Exhibit Q. SMART Annual Implementation Review Letter dated 9/17/13, # 4 Exhibit R. John Doe #1 Requests to Admit, # 5 Exhibit S. John Doe #2 Requests to Admit, # 6 Exhibit T. John Doe #3 Requests to Admit, # 7 Exhibit U. John Doe #4 Requests to Admit, # 8 Exhibit V. John Doe #5 Requests to Admit, # 9 Exhibit W. Mary Doe Requests to Admit, # 10 Exhibit X. SMART Letter dated 2/1/11, # 11 Exhibit Y. Federal Register, Vol. 73, No. 128, July 2, 2008, # 12 Exhibit Z. Michigan Sex Offender Registration Legislative Recommendations) (Grill, Erik) (Entered: 02/20/2014)
75 APPENDIX re: 68 MOTION for Summary Judgment filed by RICHARD D. SNYDER, KRISTE ETUE. by All Defendants (Attachments: # 1 Exhibit AA. SMART Sex Offender Registration and Notification Checklist, # 2 Exhibit BB. SMART National Guidelines for Sex Offender Registration and Notification, # 3 Exhibit CC. SMART Office Website, printed 1/15/14, # 4 Exhibit DD. House Fiscal Agency Analysis, # 5 Exhibit EE. PSOR Public Website Example, # 6 Exhibit FF. MSP Sex Offender Registry and Enforcement Training PowerPoint, # 7 Exhibit GG. Attorney General Letter Opinion dated 7/14/06, # 8 Exhibit HH. Tier Letters to Sex Offenders, # 9 Exhibit II. PSOR FAQs, # 10 Index of Exhibits JJ. Student Safety Zone Questions and Answers) (Grill, Erik) (Entered: 02/20/2014)
76 APPENDIX re: 68 MOTION for Summary Judgment filed by RICHARD D. SNYDER, KRISTE ETUE. by KRISTE ETUE, RICHARD D. SNYDER (Attachments: # 1 Exhibit KK. SOR Unit Training Manual, # 2 Exhibit LL. Tanner PowerPoint 2013, # 3 Exhibit MM. Tanner PowerPoint 2009, # 4 Exhibit NN. Tanner PowerPoint 2011, # 5 Exhibit OO. PAAM Outline of SORA Changes, # 6 Exhibit PP. SOR Unit Responses to ACLU, # 7 Exhibit QQ. ACLU Dissection of Draft dated 11/3/10, # 8 Exhibit RR. Explanation of Duties, # 9 Exhibit SS. Bill Analysis, SB 221) (Grill, Erik) (Entered: 02/20/2014)
77 ERRATA Sheet re: 73 Appendix,,, filed by RICHARD D. SNYDER, KRISTE ETUE. by KRISTE ETUE, RICHARD D. SNYDER (Grill, Erik) (Entered: 02/24/2014)
Remark − The Trial Document deadline, Final Pretrial Conference and Bench Trial date are suspended pending resolution of the motions for summary judgment. (LWag) (Entered: 03/03/2014)
78 JOINT STIPULATION AND ORDER TO STRIKE 68 MOTION for Summary Judgment and granting leave for defendants to refile with additional redactions. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 03/03/2014)
79 Amended MOTION for Summary Judgment by KRISTE ETUE, RICHARD D. SNYDER. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit A. State v. Husband, 2008 Ariz. App, # 3 Exhibit B. School Cuts Spur Michigan Conflict, Wall St. Journal, April 4, 2011, p 2, # 4 Exhibit C. Mueller v. Raemisch) (Grill, Erik) (Entered: 03/04/2014)
80 NOTICE of Appearance by Douglas R. Mullkoff on behalf of Mary Doe, John Doe #5, John Does. (Mullkoff, Douglas) (Entered: 03/06/2014)
81 MOTION for Leave to File Brief as Amici Curiae by All Plaintiffs. (Mullkoff, Douglas) (Entered: 03/07/2014)

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82 Amicus Curiae BRIEF by All Plaintiffs (Attachments: # 1 Exhibit Exhibit 1) (Mullkoff, Douglas) (Entered: 03/07/2014)
83 Joint MOTION for Extension of Time to File Response/Reply as to 58 MOTION for Summary Judgment by KRISTE ETUE, RICHARD D. SNYDER. (Grill, Erik) (Entered: 03/10/2014)
Remark − Joint Motion to Extend Time to file Responses to the Dispositive Motions will be granted. The court will enter its own order. (LWag) (Entered: 03/11/2014)
84 ORDER Suspending Briefing and Directing Parties to Appear for a ( Status Conference set for 4/15/2014 10:00 AM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 03/14/2014)
Minute Entry for proceedings held before District Judge Robert H. Cleland: Status Conference held on 4/15/2014 Disposition: Parties to submit a proposed briefing schedule wihtin one week. (LWag) (Entered: 04/15/2014)
Minute Entry for proceedings held before District Judge Robert H. Cleland: Telephonic Status Conference held on 4/22/2014 Disposition: Extension of One Week Granted to submit stip/order with proposed briefing schedule (LWag) (Entered: 04/23/2014)
85 ORDER SETTING New Briefing Schedule and Page Limits for Rule 52 Motions and Briefs; DENYING without prejudice 58 Motion for Summary Judgment; 79 Motion for Summary Judgment. Plaintiffs' Rule 52 Motion for Judgement due by 6/11/2014; Defendants' Response and Motion for Judgment due by 7/2/2014; Plaintiffs' Response and Reply due by 7/23/2014 and Defendants' Optional Reply due by 8/6/2014, . Signed by District Judge Robert H. Cleland. (LWag) (Entered: 05/01/2014)
TEXT−ONLY ORDER GRANTING 81 MOTION for Leave to File Brief as Amici Curiae filed by Mary Doe, John Does. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 05/05/2014)
86 STIPULATED ORDER Setting New Schedule for Rule 52 Motions and Briefs (Plaintiffs' Rule 52 Motion for Judgment due by 6/27/2014; Defendants' Response and Rule 52 Motion due by 7/9/2014, Plaintiffs' Combined Response and Reply due by 7/23/2014; and Defendants' Reply Brief due by 8/6/2014) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 06/06/2014)
87 MOTION in Limine and Brief in Support by KRISTE ETUE, RICHARD D. SNYDER. (Attachments: # 1 Index of Exhibits Listing of Exhibits, # 2 Exhibit A. Peter Wagner Report, # 3 Exhibit B. Peter Wagner Curriculum Vitae, # 4 Exhibit C. Peter Wagner Deposition Transcript, # 5 Exhibit D. Joseph Granzotto Deposition Transcript, # 6 Exhibit E. Timothy Poxson Deposition Transcript) (Grill, Erik) (Entered: 06/06/2014)
88 RESPONSE to 87 MOTION in Limine and Brief in Support filed by Mary Doe, John Doe #5, John Does. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1: Declaration of Peter Wagner, # 3 Exhibit 2: First Expert Report of Peter Wagner, # 4 Exhibit 3: Declaration of Joseph Granzotto, # 5 Exhibit 4: Declaration of Timothy Poxson) (Aukerman, Miriam) (Entered: 06/17/2014)
Set Deadlines/Hearings: IN PERSON Status Conference with Attorneys Erik Grill and Miriam Aukerman ONLY set for 6/18/2014 12:00 PM before District Judge Robert H. Cleland (LWag) (Entered: 06/17/2014)
Minute Entry for proceedings held before District Judge Robert H. Cleland: Status Conference held on 6/18/2014 (LWag) (Entered: 06/18/2014)
89 REPLY to Response re 87 MOTION in Limine and Brief in Support filed by KRISTE ETUE, RICHARD D. SNYDER. (Grill, Erik) (Entered: 06/20/2014)
90 STATEMENT of Joint Statement of Fact and Exhibit by KRISTE ETUE, RICHARD D. SNYDER (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. John Doe # 1 Deposition, # 3 Exhibit 2. John Doe # 2 Deposition, # 4 Exhibit 3. John Doe # 3 Deposition, # 5 Exhibit 4. John Doe # 4 Deposition, # 6 Exhibit 5. John Doe # 5 Deposition, # 7 Exhibit 6. Mary Doe Deposition, # 8 Exhibit 7. I.G. Deposition, # 9 Exhibit 8. S.F. Deposition, # 10 Exhibit 9. Jill Levenson Deposition, # 11 Exhibit 10.

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06/27/2014 06/27/2014 06/27/2014

JJ Prescott Deposition, # 12 Exhibit 11. Peter Wagner Deposition, # 13 Exhibit 12. Janet Fay−Dumaine Deposition, # 14 Exhibit 13. Richard Stapleton Deposition, # 15 Exhibit 14. Timothy Poxson Deposition, # 16 Exhibit 15. Karen Johnson First and Second Depositions, # 17 Exhibit 16. Timothy Burchell Deposition, # 18 Exhibit 17. Bruce Payne Deposition, # 19 Exhibit 18. Leslie Wagner Deposition, # 20 Exhibit 19. Chris Hawkins Deposition, # 21 Exhibit 20. Anne Yantus Deposition, # 22 Exhibit 21. Herbert Tanner Deposition, # 23 Exhibit 22. Expert Report of Dr. James J. Prescott, J.D., Ph.D., # 24 Exhibit 23. Expert Report of Dr. Jill Levenson, Ph.D., # 25 Exhibit 24. Expert Report of Dr. Janet Fay−Dumaine, Psy. D.) (Grill, Erik) (Entered: 06/27/2014)
91 EXHIBIT CONTINUED re 90 Statement,,,,, by KRISTE ETUE, RICHARD D. SNYDER (Attachments: # 1 Exhibit 25. First Expert Report of Peter Wagner, J.D., # 2 Exhibit 26. Second Expert Report of Peter Wagner, J.D., # 3 Exhibit 27. Expert Report of Anne Yantus, J.D., # 4 Exhibit 28. Expert Report of Richard Stapleton, # 5 Exhibit 29. Declaration (Second) of John Doe # 5, # 6 Exhibit 30. Declaration (Second) of Mary Doe, # 7 Exhibit 31. Amended Declaration of I.G., # 8 Exhibit 32. Declaration of Timothy Poxson, # 9 Exhibit 33. Declaration of Joseph Granzotto, # 10 Exhibit 34. Summary of Obligations, Disabilities, and Restraints Imposed by SORA 2013, # 11 Exhibit 35. Plaintiffs Response to Defendants Interrogatory 11, # 12 Exhibit 36. Doe # 1 Interrogatory Responses, # 13 Exhibit 37. Doe # 2 Interrogatory Responses, # 14 Exhibit 38. Doe # 3 Interrogatory Responses, # 15 Exhibit 39. Doe # 4 Interrogatory Responses, # 16 Exhibit 40. Doe # 5 Interrogatory Responses, # 17 Exhibit 41. Mary Doe Interrogatory Responses, # 18 Exhibit 42. Defendants Responses to Plaintiffs First Interrogatories, # 19 Exhibit 43. Defendants Supplemental Responses to Plaintiffs First Interrogatories and Requests for Production of Documents, # 20 Exhibit 44. Defendants Answers to Plaintiffs First Requests for Admission, # 21 Exhibit 45. MSP SORA Charging Data, # 22 Exhibit 46. MSP SORA Conviction Data, # 23 Exhibit 47. MSP Official Order 79, # 24 Exhibit 48. Tier Notification Letters, # 25 Exhibit 49. SOR Unit Student Safety Zone Cheatsheet, # 26 Exhibit 50. OffenderWatch User Manual, Selected Portions) (Grill, Erik) (Entered: 06/27/2014)
92 EXHIBIT Continued re 90 Statement,,,,, by KRISTE ETUE, RICHARD D. SNYDER (Attachments: # 1 Exhibit 51. OffenderWatch Express Description, # 2 Exhibit 52. OffenderWatch Contract, # 3 Exhibit 53. Total Number on SOR by Year, # 4 Exhibit 54. Total Number of Offenders by Tier, # 5 Exhibit 55. Roster of MSP/SOR Unit Staff, # 6 Exhibit 56. Michigan State Police List of SORA Coordinators, # 7 Exhibit 57. Sample SOR Letter to Registrant, # 8 Exhibit 58. MSP Sex Offender Registry and Enforcement Training Powerpoint 2011, # 9 Exhibit 59. Herb Tanner Sex Offender Registry Training 2013 for Prosecutors, # 10 Exhibit 60. Herb Tanner Sex Offender Registry Training 2011 for Prosecutors, # 11 Exhibit 61. Registration Length June/August 2011, # 12 Exhibit 62. Explanation of Duties Form, # 13 Exhibit 63. Doe #2 Michigan State Police Criminal History Print−out, # 14 Exhibit 64. Doe #2 Public Sex Offender Registry Print−Out, # 15 Exhibit 65. Doe #2 DD−214 Certificate of Release or Discharge from Active Duty, # 16 Exhibit 66. Affidavit of Victim in Case of Doe #2, # 17 Exhibit 67. Fiscal Year 2014 SOR Unit Budget, # 18 Exhibit 68. Offender Watch Training Video, Disk 3, Part 1 and Disk 4, Part 1,, # 19 Exhibit 69. Filed Under Seal, # 20 Exhibit 70. Filed Under Seal, # 21 Exhibit 71. Doe v. Thompson, Case No. 12−C−168 (Kan. Division 6, July 2013), # 22 Exhibit 72. The National Conference of State Legislatures, Cost−Benefit Analyses of SORNA Implementation, # 23 Exhibit 73. California AWA Position Statement, # 24 Exhibit 74. Colorado AWA White Paper, # 25 Exhibit 75. Texas Study of Costs to Local Government of Implementing AWA, # 26 Exhibit 76. Senate Fiscal Agency Analysis for Senate Bill 221, # 27 Exhibit 77. Pew Research Center, Search and email still top the list of most popular on−line activities (May 2011)) (Grill, Erik) (Entered: 06/27/2014)
93 EXHIBIT Continued re 90 Statement,,,,, by KRISTE ETUE, RICHARD D. SNYDER (Attachments: # 1 Exhibit 78. Karl Hanson Study, # 2 Exhibit 79. Karl Hanson Declaration, # 3 Exhibit 80. Sex Offender Sexual Recidivism Risk Levels Over Time Graph (Hanson), # 4 Exhibit 81. Collateral Damage: Family Members of Registered Sex Offenders, # 5 Exhibit 82. DOJ Evaluation of Sex Offender Residency Restrictions in Michigan and Missouri, # 6 Exhibit 83. SOR Unit Manual, # 7 Exhibit 84. Judgment of Sentence Form CC219b, # 8 Exhibit 85. Doe #2 Order Amending Probation, # 9 Exhibit 86. Doe #3 Order of Probation, # 10 Exhibit 87. MSP Memo re

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06/27/2014
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Operation Verify, # 11 Exhibit 88. Legislative Analysis of Public Act 542 (2002), # 12 Exhibit 89. Regional Jail Feasibility Study, # 13 Exhibit 90. State of Michigan Prison Cost, # 14 Exhibit 91. SMART SORNA Substantial Compliance Jurisdictions, # 15 Exhibit 92. Legislative Services Bureau Report on SORA, # 16 Exhibit 93. Michigan State Police News Releases on Sweeps, # 17 Exhibit 94. Michigan Attorney General Letter Re Student Safety Zones, # 18 Exhibit 95. SMART Confirmation of Michigans Substantial Compliance, # 19 Exhibit 96. Byrne Fund Reports 2011, # 20 Exhibit 97. Michigan Senate Bills 76 and 77 Re Expanding Student Safety Zones to Include Daycares, # 21 Exhibit 98. Defendants Second Supplemental Responses to Plaintiffs First Interrogatories and Requests for Production of Documents, # 22 Exhibit 99. Letter Announcing Offender Watch dated 10/24/13, # 23 Exhibit 100. SMART Annual Implementation Review Letter dated 9/17/13, # 24 Exhibit 101. John Doe #1 Requests to Admit, # 25 Exhibit 102. John Doe #2 Requests to Admit, # 26 Exhibit 103. John Doe #3 Requests to Admit, # 27 Exhibit 104. John Doe #4 Requests to Admit, # 28 Exhibit 105. John Doe #5 Requests to Admit, # 29 Exhibit 106. Mary Doe Requests to Admit, # 30 Exhibit 107. SMART letter dated 2/1/11, # 31 Exhibit 108. Federal Register, Vol. 73, No. 128, July 2, 2008, # 32 Exhibit 109. Michigan Sex Offender Registration Legislative Recommendations, # 33 Exhibit 110. SMART Sex Offender Registration and Notification Checklist) (Grill, Erik) (Entered: 06/27/2014)
94 EXHIBIT Continued re 90 Statement,,,,, by KRISTE ETUE, RICHARD D. SNYDER (Attachments: # 1 Exhibit 111. SMART National Guidelines for Sex Offender Registration and Notification, # 2 Exhibit 112. House Fiscal Agency Analysis for SB 188, 189, and 206., # 3 Exhibit 113. Public Sex Offender Registry (PSOR) Frequently Asked Questions, # 4 Exhibit 114. PAAM Outline of 2011 SORA Changes, # 5 Exhibit 115. SOR Unit Responses to ACLU, # 6 Exhibit 116. ACLU Dissection of Draft dated 11/3/10, # 7 Exhibit 117. Herb Tanner Sex Offender Registry Training 2009 for Prosecutors, # 8 Exhibit 118. OffenderWatch Home Screen, # 9 Exhibit 119. OffenderWatch Search Screen, # 10 Exhibit 120. Doe #2 OffenderWatch page, # 11 Exhibit 121. OffenderWatch Non−Compliant Offender Search Results, first page, # 12 Exhibit 122. OffenderWatch Search Results from Specified Point, # 13 Exhibit 123. OffenderWatch Individual Registrant Map, # 14 Exhibit 124. OffenderWatch Registration for Email Alerts on Individuals, # 15 Exhibit 125. OffenderWatch Registration for Email Alerts around Locations, # 16 Exhibit 126. MSP Annual Fee Letter dated March 2014, # 17 Exhibit 127. Doe #1 OffenderWatch page, # 18 Exhibit 128. eclaration of Peter Wagner) (Grill, Erik) (Entered: 06/27/2014)
95 SEALED EXHIBIT Ex 69 and Ex 70 re 90 Statement,,,,, by KRISTE ETUE, RICHARD D. SNYDER. (Attachments: # 1 Exhibit 69. Doe # 4 filed under seal, # 2 Exhibit 70. Doe #4 filed under seal) (Grill, Erik) (Entered: 06/27/2014)
96 MOTION for Judgment by Mary Doe, John Doe #5, John Does. (Aukerman, Miriam) (Entered: 06/27/2014)
Set Deadlines/Hearings: TELEPHONIC Status Conference set for 7/9/2014 11:00 AM before District Judge Robert H. Cleland (THE COURT WILL INTIATE THE CALL) (LWag) (Entered: 07/07/2014)
Minute Entry for proceedings held before District Judge Robert H. Cleland: Telephonic Status Conference held on 7/9/2014 Disposition: Parties to submit and lodge with the court, full electronic, searchable, copies of entire/complete trancsript. (LWag) (Entered: 07/09/2014)
97 RESPONSE to 96 MOTION for Judgment and Combined Rule 52 Motion filed by KRISTE ETUE, RICHARD D. SNYDER. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit A. State v. Husband, 2008 Ariz. App. Unpub. LEXIS 44, Docket #1 CA−CR 07−0102 (2008), # 3 Exhibit B. School Cuts Spur Michigan Conflict, Wall St. Journal, April 4, 2011, p 2, # 4 Exhibit C. Mueller v. Raemisch, ___ F.3d ___, 11−16 (7th Cir. 2014)) (Grill, Erik) (Entered: 07/09/2014)
98 ERRATA Sheet re: 94 Exhibit,,,,, filed by RICHARD D. SNYDER, KRISTE ETUE. by KRISTE ETUE, RICHARD D. SNYDER (Attachments: # 1 Exhibit 127. DOE #1S OFFENDERWATCH PAGE) (Grill, Erik) (Entered: 07/15/2014)
99 RESPONSE to 97 Response to Motion, 96 MOTION for Judgment Defendants' Rule 52 Motion and Reply on Plaintiffs' Motion for Judgment by All Plaintiffs. (Reingold, Paul) (Entered: 07/23/2014)

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05/20/2015 05/20/2015 06/03/2015
06/05/2015 06/11/2015
08/14/2015 08/17/2015 08/28/2015

100 REPLY to Response re 96 MOTION for Judgment filed by KRISTE ETUE, RICHARD D. SNYDER. (Grill, Erik) (Entered: 08/06/2014)
101 SUPPLEMENTAL BRIEF re 99 Response (Free), 96 MOTION for Judgment filed by All Plaintiffs. (Reingold, Paul) (Entered: 11/21/2014)
102 OPINION AND ORDER denying defendants' Motion in Limine 87 . Signed by District Judge Robert H. Cleland. (MBea) (Entered: 03/31/2015)
103 OPINION AND ORDER Resolving Motions for Judgment. (granting in part and denying in part 96 and 97 ) Signed by District Judge Robert H. Cleland. (MBea) (Entered: 03/31/2015)
104 ORDER requiring additional briefing (due 4/20/15) Signed by District Judge Robert H. Cleland. (MBea) (Entered: 03/31/2015)
105 NOTICE of Appearance by Marc Sebastian Allen on behalf of Mary Doe, John Doe #5, John Does. (Allen, Marc) (Entered: 04/06/2015)
106 SUPPLEMENTAL BRIEF re 104 Order filed by Mary Doe, John Doe #5, John Does. (Aukerman, Miriam) (Entered: 04/20/2015)
107 SUPPLEMENTAL BRIEF re 104 Order filed by KRISTE ETUE, RICHARD D. SNYDER. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit A. Applying for a license or ID, # 3 Exhibit B. Drivers License Manuald) (Grill, Erik) (Entered: 04/20/2015)
108 NOTICE OF APPEAL by KRISTE ETUE, RICHARD D. SNYDER re 103 Order on Motion for Judgment. Fee Status: No Fee Paid. (Grill, Erik) (Entered: 04/29/2015)
109 Certificate of Service re 108 Notice of Appeal. (EBro) (Entered: 04/29/2015)
Appeal Fee received for 108 Notice of Appeal filed by RICHARD D. SNYDER, KRISTE ETUE in the amount of $ 505.00 − Receipt No. DET079363. (Huff, W.) (Entered: 05/06/2015)
110 ORDER Setting Hearing on the remaining issues of the 96 MOTION for Judgment filed by Mary Doe, John Doe #5, John Does :( Motion Hearing set for 6/9/2015 03:00 PM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 05/08/2015)
111 NOTICE OF CROSS APPEAL by Mary Doe, John Doe #5, John Does re 103 Order on Motion for Judgment. Receipt No: 0645−5170171 − Fee: $ 505 − Fee Status: Fee Paid. (Aukerman, Miriam) (Entered: 05/20/2015)
112 Certificate of Service re 111 Notice of Cross Appeal. (DPer) (Entered: 05/20/2015)
113 NOTICE OF HEARING. Motion Hearing on the remaining issues of the (96) MOTION for Judgment filed by Mary Doe, John Doe #5, John Does :( RE−set for 6/11/2015 10:00 AM before District Judge Robert H. Cleland (LWag) (Entered: 06/03/2015)
114 ORDER from U.S. Court of Appeals − Sixth Circuit re 108 Notice of Appeal filed by RICHARD D. SNYDER, KRISTE ETUE [Appeal Case Number 15−1604] (KCla) (Entered: 06/10/2015)
Minute Entry for proceedings before District Judge Robert H. Cleland: Motion Hearing held on 6/11/2015 re Outstanding Remaining Issues − of the 96 MOTION for Judgment filed by Mary Doe, John Doe #5, John Does Disposition: TAKEN UNDER ADVISEMENT(Court Reporter Suzanne Jacques) (LWag) (Entered: 06/11/2015)
115 JOINT STIPULATION AND ORDER to supplement the record Signed by District Judge Robert H. Cleland. (LWag) (Entered: 08/14/2015)
116 AFFIDAVIT of Doe IV re 115 Stipulation and Order by Mary Doe, John Doe #5, John Does (Aukerman, Miriam) (Entered: 08/17/2015)
117 STIPULATION AND ORDER to allow Counsel Sofia Nelson to Withdraw. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 08/28/2015)

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09/03/2015
09/03/2015 09/14/2015 09/23/2015 09/28/2015 10/21/2015 10/26/2015 10/27/2015 11/20/2015 11/20/2015 11/23/2015 11/30/2015 12/16/2015
02/02/2016 02/02/2016

118 OPINION AND ORDER Resolving Outstanding Issues, GRANTING IN PART AND DENYING IN PART 97 Defendants' Rule 52 Motion filed and 96 GRANTING IN PART AND DENYING IN PART Plaintiffs' Rule 52 MOTION for Judgment ; DECLARING Mich. Comp. Laws 28.725a(7) Unconstitutional and its Enforcement is Enjoined as Applied to John Doe #4 and IT IS FURTHER ORDERED that the Mich. Comp.Laws 27.727(1)(i) is DECLARED Unconstitutional and its Enforcement is Enjoined. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 09/03/2015)
119 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 9/14/2015 10:00 AM before District Judge Robert H. Cleland (LWag) (Entered: 09/03/2015)
Minute Entry for proceedings before District Judge Robert H. Cleland: Telephonic Status Conference held on 9/14/2015 Disposition: Order to enter (LWag) (Entered: 09/14/2015)
120 STIPULATION AND ORDER for Extension of Time for parties to move for attorney's fees and costs Signed by District Judge Robert H. Cleland. (LWag) (Entered: 09/23/2015)
121 ORDER Directing Parties to Submit a Joint Proposed Judgment by October 12, 2015. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 09/28/2015)
122 FINAL JUDGMENT in part to Plaintiffs and in part to Defendants. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 10/21/2015)
123 NOTICE OF APPEAL by Mary Doe, John Doe #5, John Does re 27 Order on Motion to Dismiss, 122 Judgment, 103 Order on Motion for Judgment, 118 Order,,. Receipt No: 0645−5398944 − Fee: $ 505 − Fee Status: Fee Paid. (Aukerman, Miriam) (Entered: 10/26/2015)
124 Certificate of Service re 123 Notice of Appeal. (DWor) (Entered: 10/27/2015)
125 NOTICE OF APPEAL by KRISTE ETUE, RICHARD D. SNYDER. Fee Status: No Fee Paid. (Grill, Erik) (Entered: 11/20/2015)
126 Certificate of Service re 125 Notice of Appeal. (ATee) (Entered: 11/20/2015)
Court Reporter Acknowledgment of Transcript Order Form received on 11/13/2015. Transcript for court proceeding held on: 8/8/2012. Estimated transcript completion date: 12/13/2015. Estimated number of pages: 78. Payment arrangements were made on 11/13/2015. (Russell, C.) (Entered: 11/23/2015)
Appeal Fee received for 125 Notice of Appeal filed by RICHARD D. SNYDER, KRISTE ETUE in the amount of $ 505.00 − Receipt No. DET086259. (Huff, W.) (Entered: 11/30/2015)
127 TRANSCRIPT of Motion Hearing held on 8/8/2012. (Court Reporter/Transcriber: Christin E. Russell) (Number of Pages: 84) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 1/6/2016. Redacted Transcript Deadline set for 1/19/2016. Release of Transcript Restriction set for 3/15/2016. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Russell, C.) (Entered: 12/16/2015)
Court Reporter Acknowledgment of Transcript Order Form received on 1/26/2016. Transcript for court proceeding held on: 6/11/2015. Estimated transcript completion date: 2/2/2016. Estimated number of pages: 60. Payment arrangements were made on 1/26/2016. (Jacques, S.) (Entered: 02/02/2016)
128 TRANSCRIPT of Hearing on Remaining Issues on Motion for Judgment held on 6/11/2015. (Court Reporter: Suzanne Jacques(email: jacques@transcriptorders.com)) (Number of Pages: 59) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 2/23/2016. Redacted Transcript Deadline set for 3/4/2016. Release of Transcript Restriction set for

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08/25/2016
08/29/2016
09/15/2016 09/28/2016 10/04/2016 11/23/2016 12/08/2016 12/15/2016 12/28/2016 01/17/2017 04/03/2017 10/05/2017 10/20/2017 11/01/2017

5/2/2016. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Jacques, S.) (Entered: 02/02/2016)
129 OPINION and JUDGMENT from U.S. Court of Appeals − Sixth Circuit re 123 Notice of Appeal, filed by Mary Doe, John Doe #5, John Does, 111 Notice of Cross Appeal filed by Mary Doe, John Doe #5, John Does [Appeal Case Number 15−1536/2346/2486] (Ahmed, N) Modified on 8/25/2016 (Ahmed, N). (Entered: 08/25/2016)
130 Correction (pg. 9)OPINION from U.S. Court of Appeals − Sixth Circuit re 123 Notice of Appeal, filed by Mary Doe, John Doe #5, John Does, 129 Appeal Order/Opinion/Judgment, 111 Notice of Cross Appeal filed by Mary Doe, John Doe #5, John Does [Appeal Case Number 15−1536/2346/2486] (Ahmed, N) (Entered: 08/29/2016)
131 ORDER from U.S. Court of Appeals − Sixth Circuit re 123 Notice of Appeal, filed by Mary Doe, John Doe #5, John Does, 125 Notice of Appeal filed by RICHARD D. SNYDER, KRISTE ETUE [Appeal Case Number 15−2346/15−2486] (Ahmed, N) (Entered: 09/15/2016)
132 ORDER from U.S. Court of Appeals − Sixth Circuit re 123 Notice of Appeal, filed by Mary Doe, John Doe #5, John Does, 111 Notice of Cross Appeal filed by Mary Doe, John Doe #5, John Does [Appeal Case Number 15−1536/15−2346/15−2486] (Ahmed, N) (Entered: 09/28/2016)
133 ORDER from U.S. Court of Appeals − Sixth Circuit re 123 Notice of Appeal, filed by Mary Doe, John Doe #5, John Does, 111 Notice of Cross Appeal filed by Mary Doe, John Doe #5, John Does [Appeal Case Number 15−1536/2346/2486] (Ahmed, N) (Entered: 10/04/2016)
135 MANDATE from U.S. Court of Appeals − Sixth Circuit as to 123 Notice of Appeal, filed by Mary Doe, John Doe #5, John Does, 129 Appeal Order/Opinion/Judgment, 111 Notice of Cross Appeal filed by Mary Doe, John Doe #5, John Does [Appeal Case Number 15−1536/2346/2486] (Ahmed, N) (Entered: 12/13/2016)
134 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 12/15/2016 10:30 AM before District Judge Robert H. Cleland THE COURT WILL INITATE THE CALL (LWag) (Entered: 12/08/2016)
Minute Entry for proceedings before District Judge Robert H. Cleland: Telephonic Status Conference held on 12/15/2016 and continued:( TELEPHONIC Status Conference re−set for 1/19/2017 10:00 AM before District Judge Robert H. Cleland) (LWag) (Entered: 12/15/2016)
136 LETTER from the US Supreme Court that a petition for writ of certiorari was filed on 12/14/2016. [Supreme Court Case Number: 16−768] [Court of Appeals Case Number: 15−1536, 15−2346, 15−2486] (Ahmed, N) (Entered: 12/28/2016)
137 ORDER Cancelling TELEPHONIC Status Conference. Signed by District Judge Robert H. Cleland. (SBur) (Entered: 01/17/2017)
138 STIPULATED ORDER Granting Interim Injunctive Relief on Remand Signed by District Judge Robert H. Cleland. (LWag) (Entered: 04/03/2017)
139 LETTER from the US Supreme Court denying the petition for writ of certiorari [Supreme Court Case Number: 16−768] [Court of Appeals Case Number: 15−1536, 15−2346, 15−2486] (DWor) (Entered: 10/05/2017)
140 NOTICE TO APPEAR: Status Conference set for 11/2/2017 02:30 PM before District Judge Robert H. Cleland at the US District Court in Port Huron, MI (LWag) (Entered: 10/20/2017)
141 ATTORNEY APPEARANCE: Margaret A. Nelson appearing on behalf of KRISTE ETUE, RICHARD D. SNYDER (Nelson, Margaret) (Entered: 11/01/2017)

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11/02/2017 11/13/2017 11/17/2017 11/17/2017 11/20/2017 12/04/2017 12/19/2017 01/04/2018 01/16/2018 01/16/2018 01/16/2018
01/18/2018 01/26/2018 03/26/2018
04/18/2018 05/03/2018

Minute Entry for proceedings before District Judge Robert H. Cleland: Status Conference held on 11/2/2017 (LWag) (Entered: 11/02/2017)
142 ORDER REOPENING CASE and setting deadlines ( Defendants' Motion for entry of judgment due by 12/4/2017; Response due by 12/19/2017, Reply due by 12/27/2017) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 11/13/2017)
143 ORDER of Attorney Substitution with stipulation. Attorney Adam P. Sadowski for KRISTE ETUE,Adam P. Sadowski for RICHARD D. SNYDER added. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 11/17/2017)
144 STIPULATED ORDER Setting Date for Plaintiffs' Motion for Costs and Attorney Fees until 60 days after entry of the final judgment Signed by District Judge Robert H. Cleland. (LWag) (Entered: 11/17/2017)
145 NOTICE by All Plaintiffs Regarding Parallel/Overlapping Cases (Reingold, Paul) (Entered: 11/20/2017)
146 MOTION for Judgment by KRISTE ETUE. (Attachments: # 1 Index of Exhibits Index of Exhibit, # 2 Exhibit 1. Proposed Final Judgment after Appeal) (Nelson, Margaret) (Entered: 12/04/2017)
147 RESPONSE to 146 MOTION for Judgment filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 Proposed Judgment, # 3 Exhibit 2 Current SORA) (Reingold, Paul) (Entered: 12/19/2017)
148 STIPULATED ORDER Extending Time to file Defendant's reply brief as to 146 MOTION for Judgment :( Reply due by 1/9/2018) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 01/04/2018)
149 REPLY to Response re 146 MOTION for Judgment filed by KRISTE ETUE, RICHARD D. SNYDER. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit 1. Stipulated Final Judgment on Remand, # 3 Exhibit 2. Senate Bill No. 188, # 4 Exhibit 3. Senate Bill No. 189) (Sadowski, Adam) (Entered: 01/16/2018)
150 NOTICE by KRISTE ETUE, RICHARD D. SNYDER re 149 Reply to Response to Motion, (Sadowski, Adam) (Entered: 01/16/2018)
151 REPLY to Response re 146 MOTION for Judgment Corrected filed by KRISTE ETUE, RICHARD D. SNYDER. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit 1. Stipulated Final Judgment on Remand, # 3 Exhibit 2. Senate Bill No. 188, # 4 Exhibit 3. Senate Bill No. 189) (Sadowski, Adam) (Entered: 01/16/2018)
152 STIPULATED ORDER Extending time to file Defendant's reply brief Signed by District Judge Robert H. Cleland. (LWag) (Entered: 01/18/2018)
153 STIPULATED FINAL JUDGMENT on Remand in favor of Plaintiffs against Defendants (See Judgment for Details) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 01/26/2018)
154 MOTION attorneys' fees and costs by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V, # 24 Exhibit W, # 25 Exhibit X, # 26 Exhibit Y, # 27 Exhibit Z, # 28 Exhibit AA, # 29 Exhibit BB, # 30 Exhibit CC, # 31 Exhibit DD, # 32 Exhibit EE) (Reingold, Paul) Modified on 3/26/2018 (DWor). [DOCUMENT ENTITLED "PETITION] (Entered: 03/26/2018)
155 STIPULATED ORDER Extending Deadlines re 154 MOTION attorneys' fees and costs, and costs :( Response due by 4/30/2018, Reply due by 5/14/2018) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 04/18/2018)
156 STIPULATED ORDER Extending Time to file response and reply as to the 154 MOTION attorneys' fees and costs :( Response due by 5/7/2018, Reply due by 5/21/2018) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 05/03/2018)

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05/07/2018 05/18/2018
06/15/2018 06/18/2018 06/21/2018 06/21/2018 06/26/2018 07/18/2018
08/17/2018

157 RESPONSE to 154 MOTION attorneys' fees and costs filed by KRISTE ETUE, RICHARD D. SNYDER. (Sadowski, Adam) (Entered: 05/07/2018)
158 ORDER REFERRING MOTION to Magistrate Judge David R. Grand: 154 MOTION attorneys' fees and costs filed by Mary Doe, John Does., ORDER REFERRING OTHER MATTERS to Magistrate Judge Grand : Settlement Conference re 154 MOTION attorneys' fees and costs filed by Mary Doe, John Does and Suspending Date for Reply Brief. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 05/18/2018)
159 MOTION for Preservation of Documents in the MDOC Possession and Motion to Suppress by Curwood−Lewis. (NAhm) (Entered: 06/18/2018)
160 NOTICE TO APPEAR: Settlement Conference set for 7/18/2018 09:30 AM before Magistrate Judge David R. Grand (EBut) (Entered: 06/18/2018)
161 ORDER denying 159 Motion for Preservation of documents.. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 06/21/2018)
TEXT−ONLY CERTIFICATE OF SERVICE re 161 Order on Motion − Free on Curwood Lewis Price at 18980 Fenton Street Apt 108, Detroit, MI 48219. (LWag) (Entered: 06/21/2018)
162 NOTICE by class members filed by Robert J. Blythe, Homer L. Garren, Timothy P. Gronsyan, Robert B. Hudson, John M. Pontious, Curwood Lewis Price (DPer) (Entered: 06/26/2018)
Minute Entry for proceedings before Magistrate Judge David R. Grand: Settlement Conference held on 7/18/2018. Disposition: Settlement conference held. The parties agreed to resolve plaintiffs' motion for attorneys' fees and costs, and the terms of that agreement were placed on the record. The Court expects the parties to file a stipulated order resolving the motion within 30 days. (EBut) (Entered: 07/19/2018)
163 STIPULATED ORDER RESOLVING AND DISMISSING AS MOOT WITH PREJUDICE 154 Plaintiffs' Petition for Attorney Fees and Costs. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 08/17/2018)