449 F.Supp.3d 719
E.D. Mich.2020Background
- Plaintiffs (a certified class with two ex post facto subclasses) challenge Michigan’s Sex Offender Registration Act (SORA) on ex post facto, vagueness, due process (strict liability), and First Amendment grounds; two motions were pending for declaratory/injunctive relief and partial summary judgment.
- In Does I the Sixth Circuit held that retroactive application of SORA’s 2006 and 2011 amendments to the individual plaintiffs was punitive and unconstitutional; this court entered stipulated judgment consistent with that decision.
- Does II consolidated class litigation seeks (a) relief for the pre-2006 and 2006–2011 ex post facto subclasses and (b) classwide relief on remaining constitutional claims; the court certified the class and subclasses.
- The court held briefing in abeyance while parties engaged in legislative discussions; no legislative fix materialized, so Plaintiffs renewed their motions.
- This court (1) reads Does I as broadly invalidating retroactive application of the 2006 and 2011 amendments to the ex post facto subclasses; (2) finds the 2011 amendments are not severable under Michigan law, rendering SORA unenforceable as to the ex post facto subclasses; and (3) reaffirms prior holdings that certain SORA provisions are void for vagueness, violate due process as strict liability, or violate the First Amendment and enjoins enforcement of those provisions as to all registrants.
- The court ordered the parties to prepare notice to registrants, law enforcement, and prosecutors and set a 60‑day window before the judgment becomes effective to allow legislative action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of Does I (breadth of Sixth Circuit ruling) | Does I broadly invalidated retroactive application of the 2006 and 2011 amendments. | Limit Does I to specific provisions (those exceeding SORNA); certify severability questions to Michigan Supreme Court. | Court reads Does I broadly; the 2006 and 2011 amendments cannot be applied retroactively to ex post facto subclasses. |
| Severability of 2011 amendments | 2011 amendments are not severable and thus SORA cannot be applied to ex post facto subclasses. | Ask court to certify severability to Michigan Supreme Court; alternatively, argue amendments are severable. | 2011 amendments are not severable under Michigan law; removing them leaves SORA incoherent, so SORA cannot be applied to ex post facto subclasses. |
| Revival of earlier SORA versions | Court should not revive an earlier version; revival would be vague and impractical. | Earlier versions may be revived when a later statute is invalidated. | Revival is inappropriate due to multiple amendments, lack of manifest legislative intent, anti-revival statute and practical enforcement problems. |
| Vagueness challenges (student safety zones; reporting phone numbers; license plate reporting) | These provisions are unconstitutionally vague. | No new substantive defense; relies on prior appellate posture. | Court reaffirms Does I and declares listed provisions void for vagueness as to all registrants. |
| Due process — strict liability | SORA imposes strict liability for registration violations; must require mens rea. | Defendants reserve arguments for appeal but offer no intervening authority. | Court holds SORA must be read to incorporate a knowledge requirement (strict liability invalid). |
| First Amendment — reporting electronic identifiers and immediate in‑person reporting | Immediate in‑person reporting of new electronic/mail identifiers and retroactive lifetime reporting of emails/login IDs abridge speech/privacy. | No new defense; seeks severability instead. | Court enjoins requirements to report electronic mail/instant message addresses, login names/identifiers retroactively, and immediate in‑person reporting of such identifiers. |
| Notice and implementation | Plaintiffs seek court-ordered notice to registrants, law enforcement, prosecutors. | Defendants do not oppose notice; propose MSP to assist. | Court orders parties to draft joint notices (including updated Explanation of Duties), submit by March 13, 2020; judgment effective 60 days after entry unless delayed by stipulation. |
Key Cases Cited
- Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016) (held retroactive application of SORA’s 2006 and 2011 amendments punitive and unconstitutional)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment burden-shifting framework)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (standard for genuine issue of material fact on summary judgment)
- Marbury v. Madison, 5 U.S. 137 (1803) (judicial duty to interpret and declare the law)
- Blank v. Dep't of Corr., 611 N.W.2d 530 (Mich. 2000) (Michigan severability principles and presumption favoring severance)
- Memphis Planned Parenthood, Inc. v. Sundquist, 175 F.3d 456 (6th Cir. 1999) (state law governs severability; certification appropriate when state law unsettled)