Does 1-4 v. SnyderDoes 1-4 v. Snyder
- Reporters:
- ,
- Before:
- Robert H. Cleland
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
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
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”),
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
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 fifteen-year-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.)
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.
Id. at 555 (citing
“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
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.
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.”
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,
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 733-34; 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
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
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
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
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
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)).
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
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
“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. 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
Plaintiffs also argue that SORA’s quarterly reporting requirement, see
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,”
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
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
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
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
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
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.
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,”
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.
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
The term “regularly,” which triggers in-person reporting under
C. First Amendment
Count V states a First Amendment claim that is plausible on its face. Plaintiffs identify
Defendants contend that these provisions neither regulate nor chill registrants’ speech. Addressing this second contention first, whether these provisions chill a
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
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
Even assuming, arguendo, that Count VIII states a claim under Headlee and
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
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: March 18, 2013
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