101 F.Supp.3d 672
E.D. Mich.2015Background
- Six Michigan Tier III registrants (Does #1–5 and Mary Doe) challenged 2011 and 2013 amendments to Michigan’s Sex Offender Registration Act (SORA), seeking declaratory and injunctive relief; parties submitted stipulated facts and asked the court to decide on the papers under Rule 52.
- 2011 amendments reclassified offenders into tiers (Tier III = lifetime registration) and expanded reporting and exclusion requirements; 2013 amendment added a $50 annual registration fee.
- Plaintiffs’ operative claims included vagueness, due process (retroactivity and strict-liability/impossibility), First Amendment overbreadth/chill from Internet-account reporting, infringement on parental rights (right to direct education/upbringing), and ex post facto challenge to the 2013 fee.
- The court previously dismissed some claims at the motion-to-dismiss stage but left Counts IV (parental rights), V (First Amendment), VI (due process retroactivity as to extensions), and VII (vagueness) for further factual development.
- After the stipulated bench trial, the court (Judge Cleland) held multiple SORA provisions unconstitutional as applied to plaintiffs (geographic exclusion zones; various reporting requirements including in-person reporting for vehicles, phones, e-mail/IM identifiers; and vehicle/phone reporting phrases), enjoined their enforcement as applied to plaintiffs, upheld retroactive lifetime registration as rationally justified (but reserved some questions), and declined to reach the Ex Post Facto challenge to the fee under the Tax Injunction Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness of geographic exclusion zones (1,000-ft school zones) | Zones unascertainable: statute fails to specify measurement point, no maps/parcel data; forces over‑policing and chill on residence/work/loitering | Statute’s distance rule is clear on its face; tools like Google Maps suffice; OffenderWatch will aid enforcement | Void as applied: court enjoined enforcement of §§ 28.734, 28.735 against plaintiffs because statute fails to give fair notice or enforceable standards |
| Vagueness of “loiter” and related prohibitions | “Loiter” and activities (parent‑teacher events, playgrounds) are ambiguous; chilling of parental participation | Statute is clear; plaintiffs’ claims are hypothetical/not applied | As‑applied vagueness sustained for plaintiffs: definition of “loiter” is sufficiently vague to chill protected parental/associational activities; relief granted as to enforcement against plaintiffs |
| Vagueness/strict liability of reporting terms ("regularly," "routinely," "habitually stored") and in‑person reporting | Terms lack objective standards; law imposes criminal penalties with no scienter; in‑person reporting impossible or unduly burdensome, chilling speech and daily life | Law’s ordinary language suffices; lenity and enforcement practices guide implementation | As‑applied and facial vagueness sustained for many reporting terms. Court enjoined as applied: in‑person reporting for new vehicles and for new e‑mail/IM/Internet designations; reporting of routinely used phone numbers and routinely used e‑mail/IM addresses; reporting of regularly operated vehicle info. Court read a knowledge requirement concern and recognized Lampert/Liparota principles but remedied via injunctions and constructions rather than full statutory rewrite |
| First Amendment challenge to Internet‑identifier reporting (disclosure, anonymity, reporting method) | Reporting requirement chills anonymous and other protected online speech; immediate in‑person reporting is onerous and overbroad; ambiguity increases chilling | State interest is protecting minors and aiding investigations; identifiers are not publicly posted and law is content neutral | Mixed: statute’s Internet reporting provisions are content‑neutral and legitimate aims exist, but ambiguity plus the in‑person reporting requirement make those provisions not narrowly tailored. Court enjoined the in‑person immediate reporting of new Internet designations and found general e‑mail/IM reporting provisions unconstitutional as applied; reserved limited questions about retroactive application of e‑mail/IM reporting under lifetime registration for further briefing |
| Retroactive extension to lifetime registration (2011 amendments) — due process/retroactivity | Retroactive lifetime registration (from 25 years to life) is fundamentally unfair, burdens plea bargains, and implicates parental and First Amendment rights requiring heightened scrutiny | Retroactivity is rationally related to legitimate objectives: public safety, SORNA compliance (federal funding), and national uniformity | Upheld under rational‑basis review: retroactive lifetime registration justified by rational legislative purposes (public safety, conformity with SORNA/funding, uniformity). Court reserved intermediate scrutiny questions only insofar as lifetime registration incorporates Internet reporting obligations |
| Ex Post Facto challenge to 2013 $50 annual fee | Fee operates as retroactive punitive burden/ex post facto punishment | Fee is a statutory revenue measure for SORA administration | Court did not reach merits: Tax Injunction Act bars federal courts from enjoining state tax collection; under Sixth Circuit precedent the fee is treated as a tax and claim is within state court remedies |
Key Cases Cited
- Grayned v. City of Rockford, 408 U.S. 104 (1972) (vagueness two‑part test: fair notice and enforcement standards)
- City of Chicago v. Morales, 527 U.S. 41 (1999) (plurality) (loitering ordinance vagueness; fair‑notice concerns)
- Lampert v. California, 355 U.S. 225 (1957) (registration statutes and due‑process knowledge requirement)
- Liparota v. United States, 471 U.S. 419 (1985) (imposing scienter where conduct is not inherently blameworthy)
- Reno v. ACLU, 521 U.S. 844 (1997) (Internet speech receives full First Amendment protection)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, manner test: content‑neutral restrictions must be narrowly tailored and leave open ample alternatives)
- Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010) (upholding limited Internet‑identifier reporting where data withheld from public and used for law‑enforcement purposes)
- Doe v. Harris, 772 F.3d 563 (9th Cir. 2014) (striking California Internet‑identifier reporting law: ambiguity, public disclosure risk, and short reporting window chilled speech)
- Belle Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553 (6th Cir. 1999) (vagueness where enforcement left to inspectors’ unbounded judgment)
- United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010) (due‑process concern when strict liability criminalizes ordinarily innocent conduct)