932 F.Supp.2d 803
E.D. Mich.2013Background
- Plaintiffs challenge Michigan’s Sex Offender Registry Act (SORA) as amended in 2011, alleging retroactive penalties and extensive reporting unconstitutionally affect their rights.
- SORA 2011 classifies registrants into three tiers, extends life-long registration for Tier III, and expands in-person reporting and travel-related obligations.
- Plaintiffs are Michigan residents previously convicted or associated with offenses involving minors, all of whom are Tier III offenders subject to lifelong registration under the 2011 amendments.
- Defendants Richard Snyder and Col. Kriste Etue moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6); argument occurred August 8, 2012.
- The court grants the motion in part and denies in part, finding SORA 2011 regulatory rather than punitive, but dismissing some retroactivity claims and certain state-law claims at issues as proceedings continue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ex post facto challenge to 2011 SORA amendments | SORA 2011 is punitive and retroactive application violates Ex Post Facto | SORA is civil, not punitive, given its text, structure, and codification | SORA 2011 is regulatory; Count I dismissed for retroactive application to I-II |
| Right to travel under substantive due process | In-person reporting and loitering near schools burden travel rights | Burdens are minimal and related to public safety; not a substantial travel restriction | Right to interstate/intrastate travel not violated; loitering and reporting not unconstitutionally burdensome |
| Right to engage in common occupations | SORA prevents employment opportunities near schools and stigmatizes registrants | No wholesale barrier to employment; only geographic restriction | No fundamental right to a particular occupation; claim not established as to fundamental right |
| Right to direct education and upbringing of children | Loitering ban interferes with parental rights to observe and participate in children’s activities | Loitering restriction is narrowly tailored to protect children | Loitering provision may infringe; requires strict scrutiny; factual development warranted |
| Vagueness, impossibility, and strict liability claims (Count VII) | Several provisions are vague or impose strict liability | Some provisions have long-standing application; no strict liability stated | Plausible due process claim; dismissal not warranted at this stage; further development needed |
Key Cases Cited
- Smith v. Doe, 538 U.S. 84 (2003) (Ex post facto analysis; civil punitive distinction and regulatory nature of registry)
- Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) (Kennedy factors for punitive vs. nonpunitive measures)
- Shapiro v. Thompson, 394 U.S. 618 (1969) (Travel rights and burdens of residency requirements)
- Saenz v. Roe, 526 U.S. 489 (1999) (Interstate travel rights components)
- Doe v. Mich. Dep’t of State Police, 490 F.3d 491 (2007) (Sixth Circuit on procedural due process challenges to SORA)
- Doe v. Nebraska, 734 F. Supp. 2d 882 (2010) (First Amendment and vagueness considerations in registry provisions)
- Doe v. Mich. Dep’t of State Police, 490 F.3d 491 (2007) (Procedural due process foreclosed for SORA challenges)
- Grayned v. City of Rockford, 408 U.S. 104 (1972) (Vagueness standard)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (Narrow tailoring and alt. channels for speech)