PEOPLE v BETTS
Docket No. 148981
Michigan Supreme Court
Argued October 7, 2020. Decided July 27, 2021.
Chief Justice: Bridget M. McCormack. Justices: Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh, Elizabeth M. Welch. Reporter of Decisions: Kathryn L. Loomis.
Syllabus
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
Paul J. Betts, Jr., entered a no-contest plea in the Muskegon Circuit Court, William C. Marietti, J., to violating the registration requirements in
In an opinion by Justice CLEMENT, joined by Chief Justice MCCORMACK and Justices BERNSTEIN and CAVANAGH, the Supreme Court held:
Michigan’s Sex Offenders Registration Act,
- The Michigan Legislature enacted SORA in 1994; this first version of SORA created a confidential database accessible only to law enforcement. It required persons convicted of certain sex offenses to register and notify law enforcement of address changes. SORA initially conceived a confidential law enforcement tool to manage registrants’ names and addresses, but by 2012, that tool transformed into a publicly accessible database that imposed significant restrictions on the lives of registrants. Defendant alleged that this transformation caused the retroactive application of the 2011 SORA to violate constitutional ex post facto protections.
US Const, art I, § 10 andConst 1963, art 1, § 10 prohibit ex post facto laws. A law is considered ex post facto if it increases the punishment for a committed crime. A two-step inquiry is used to determine whether retroactive application of the 2011 SORA unconstitutionally increases the punishment for defendant’s CSC-II conviction. First, it must be determined whether the Legislature intended the statute as a criminal punishment or a civil remedy. If a criminal punishment was intended, the retroactive application of such a statute violates the ex post facto prohibitions, and the inquiry ends. However, if the Legislature intended to impose a civil or regulatory remedy, it must then be determined whether the statutory scheme is so punitive either in purpose or effect as to negate the state’s intention to deem it civil. The following factors are relevant to the inquiry: whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment (i.e., retribution and deterrence), whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned. In this case, while some aspects of SORA suggested a punitive intent, the Legislature likely intended SORA as a civil regulation rather than a criminal punishment. The Legislature stated that SORA was enacted to promote public safety, a nonpunitive goal. However, considering the relevant factors, the 2011 SORA’s aggregate punitive effects negated the state’s intention to deem it a civil regulation: although the 2011 SORA was connected to a nonpunitive purpose given the low bar of rationality, the 2011 SORA bore significant resemblance to the traditional punishments of banishment, shaming, and parole because of its limitations on residency and employment, publication of information and encouragement of social ostracism, and imposition of significant state supervision; the 2011 SORA imposed onerous restrictions on registrants by restricting their residency and employment, and it also imposed significant affirmative obligations by requiring extensive in-person reporting; the 2011 SORA promoted the traditional aims of punishment because it aimed to protect the public through deterrence and because its restrictions appeared retributive; and given the uncertainty of the 2011 SORA’s efficacy, the restraints it imposed were excessive. Considering these factors cumulatively, the 2011 SORA’s aggregate punitive effects negated the state’s intention to deem it a civil regulation. Accordingly, the retroactive imposition of the 2011 SORA increased registrants’ punishment for their committed offenses in violation of federal and state constitutional prohibitions on ex post facto laws. MCL 8.5 expresses a legislative preference for severability.MCL 8.5 provides two important guiding factors: (1) the remaining application of the act must be consistent with the manifest intent of the Legislature, and (2) the remaining application of the act must be operable, i.e., otherwise complete in itself and capable of being carried out without reference to the unconstitutional sentence or provision. In this case, the 2011 amendments completely restructured SORA through the imposition of a tiered classification system, and the duties and requirements of each registrant were based on that registrant’s tier classification. Removing the 2011 amendments from SORA would render unclear who was required to comply with the act, how long each registrant must comply, how many times annually each registrant must report to law enforcement, and what a registrant must show to petition for removal from registration. Outside the tiered classification system, certain discrete provisions of the 2006 and 2011 amendments—including the student-safety zones ofMCL 28.733 toMCL 28.736 , as amended by 2005 PA 121, and the in-person reporting requirements ofMCL 28.725(1) , as amended by 2011 PA 17—could be excised from retroactive application without affecting the statute’s workability. However, even if the retroactive application of SORA without these discrete provisions were constitutional, that application would require improper judicial engagement in essentially legislative choices. Furthermore, the passage of 2020 PA 295 did not support the prosecution’s proposed remedy for severing the 2011 SORA. Similarly, the proposal of amicus the Gratiot County Prosecutor’s Office to remedy the constitutional violation by excising the particular provisions of the 2011 SORA that extended beyond its federal counterpart, the Sex Offender Registration and Notification Act (SORNA),34 USC 20901 et seq., was rejected. The fact that the 2011 Legislature did not amend SORA to create an identical statutory scheme to SORNA and instead included several additional provisions indicated that the Legislature was, at the very least, not motivated solely by a desire to conform to SORNA. Moreover, this proposed remedy again required improper judicial engagement in the legislative domain. Finally, a former version of SORA could not be applied to defendant through revival. Revival presents special challenges in the context of an ex post facto challenge to a statute with as complicated a legislative history as SORA. This holding did not affect the prospective application of the 2011 SORA to registrants who committed listed offenses after 2011, from the time of their conviction to the effective date of the 2020 SORA amendments. Accordingly, it would not be accurate to say that the SORA amendments failed to alter the statutory scheme, leaving the previous version in place unchanged, as with the usual revival context. In this case, given the extensive legislative history of SORA, it was unclear whether revival of earlier SORA formulations was consistent with the Legislature’s intent. Because severability and revival were deemed inappropriate tools to remedy the constitutional violation in this case, the 2011 SORA could not be retroactively applied to registrants whose criminal acts subjecting them to registration occurred before the enactment of the 2011 SORA amendments. As applied to defendant, because the crime subjecting him to registration occurred in 1993, his instant conviction of failure to register as a sex offender had to be vacated.
Defendant’s conviction vacated and case remanded for further proceedings.
Justice ZAHRA, concurring in part and dissenting in part, joined Parts I and II of Justice VIVIANO’s partial concurrence and dissent regarding the application of Michigan’s severability precedents to the 2011 SORA. However, Justice ZAHRA declined to join Part III of Justice VIVIANO’s opinion because it was unnecessary to the resolution of this case.
Justice VIVIANO, joined by Justice ZAHRA (except as to Part III), concurring in part and dissenting in part, generally agreed with the majority’s holding that the 2011 SORA violates the Ex Post Facto Clauses of the state and federal Constitutions; however, he disagreed that the statute is not severable and would have concluded that the unconstitutional portions of the statute could be removed to the extent necessary in this case. When considering whether smaller portions of the statute could be severed, the majority admitted that two pieces of the statute—the student-safety zones in
Justice WELCH did not participate in the disposition of this case because the Court considered it before she assumed office.
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v PAUL J. BETTS, JR., Defendant-Appellant.
No. 148981
STATE OF MICHIGAN SUPREME COURT
FILED July 27, 2021
CLEMENT, J.
BEFORE THE ENTIRE BENCH (except WELCH, J.)
CLEMENT, J.
We are asked to decide whether the retroactive application of Michigan’s Sex Offenders Registration Act (SORA),
I. THE EVOLUTION OF SORA
The Michigan Legislature enacted SORA in 19941 in response to the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program,
The registry became accessible to the public in 1997, when the Legislature required law enforcement to make the registry available for in-person public inspection during business hours.
As the registry became more accessible to the public, the information registrants were required to provide to law enforcement also expanded.3 In 2002, the Legislature required registrants to report whenever they enrolled, disenrolled, worked, or volunteered at an institution of higher education.
In addition to the expansion of personal information contained in the database, the Legislature also increased other restrictions and obligations imposed by SORA. Specifically, amendments effective in 2006 created “exclusion zones” that prohibited most registrants from living, working, or “loitering” within 1,000 feet of a school.
The Legislature also enacted significant structural amendments of SORA in 2011. These amendments categorized registrants into three tiers on the basis of their offenses and based the length of registration on that tier designation.
Not all amendments burdened registrants; some were ameliorative. Registration requirements were removed for individuals who were under 14 years old at the time of their offense,
SORA initially conceived a confidential law enforcement tool to manage registrants’ names and addresses, but by 2012, that tool transformed into a publicly accessible database that imposed significant restrictions on the lives of registrants. It is this transformation that defendant alleges has caused the retroactive application of the 2011 SORA to violate constitutional ex post facto protections.
II. FACTS AND PROCEDURAL HISTORY
In December 1993, defendant pleaded guilty to second-degree criminal sexual conduct (CSC-II),
The prosecutor charged defendant with violating SORA’s registration requirements,
Defendant sought leave to appeal in the Court of Appeals, and the Court of Appeals denied defendant’s application for lack of merit in the grounds presented.4 Defendant subsequently sought leave to appeal in this Court. After a period of abeyance for the resolution of related cases, this Court heard oral argument on the application in March 2019.5 Following oral argument on the application, this Court granted defendant’s application for leave to appeal and directed further oral argument as to the following issues:6
(1) whether the requirements of the Sex Offenders Registration Act (SORA),
MCL 28.721 et seq., taken as a whole, amount to “punishment” for the purposes of the Ex Post Facto Clauses of the Michigan and United States Constitutions,US Const, art I, § 10 ;Const 1963, art 1, § 10 ; see People v Earl, 495 Mich 33; 845 NW2d 721 (2014), see also Does #1-5 v Snyder, 834 F3d 696, 703-706 (CA 6, 2016), cert den sub nom Snyder v John Does #1-5, 138 S Ct 55 (2017); (2) if SORA, as a whole, constitutes punishment, whether it became punitive only upon the enactment of a certain provision or group of provisions added after the initial version of SORA was enacted; (3) if SORA only became punitive after a particular enactment, whether a resulting ex post facto violation would be remedied by applying the version of SORA in effect before it transformed into a punishment or whether a different remedy applies, see Weaver v Graham, 450 US 24, 36 n 22; 101 S Ct 960; 67 L Ed 2d 17 (1981) (“the proper relief . . . is to remand to permit the state court to apply, if possible, the law in place when his crime occurred.”); (4) if one or more discrete provisions of SORA, or groups of provisions, are found to be ex post facto punishments, whether the remaining provisions can be given effect retroactively without applying the ex post
facto provisions, see
MCL 8.5 ; (5) what consequences would arise if the remaining provisions could not be given retroactive effect; and (6) whether the answers to these questions require the reversal of the defendant’s conviction pursuant toMCL 28.729 for failure to register under SORA.7
Following oral argument, the Legislature enacted a series of amendments of SORA, effective March 24, 2021. 2020 PA 295. This Court subsequently issued an order directing the parties to provide supplemental
III. PARALLEL FEDERAL LITIGATION
During defendant’s appeal in state court, related litigation has progressed through the federal courts. In 2012, five plaintiffs required to register as Tier III offenders sued Michigan’s governor and the director of the Michigan State Police, arguing that the 2011 SORA was unconstitutional on several grounds. In a series of opinions,9 the district court partially ruled in the plaintiffs’ favor, holding that the 2011 SORA’s student-safety zone provisions were unconstitutionally vague, that certain in-person reporting provisions were unconstitutionally vague, that certain in-person reporting provisions violated the First Amendment, and that registrants could not be held strictly liable for violating the 2011 SORA’s requirements. However, the district court rejected the remainder of the plaintiffs’ claims, including their argument that the retroactive application of the 2011 SORA violated ex post facto protections.
On appeal, the United States Court of Appeals for the Sixth Circuit disagreed, concluding that the retroactive application of the 2011 SORA did violate constitutional ex post facto provisions. Does #1-5 v Snyder, 834 F3d 696, 705-706 (CA 6, 2016) (Does I). It reasoned that the cumulative punitive effects of the 2011 SORA outweighed the nonpunitive intent of the Legislature such that the retroactive application of the 2011 SORA constituted the retroactive application of punishment in violation of the federal Constitution. Id. Because this holding rendered the 2011 SORA inapplicable to the federal plaintiffs, the Sixth Circuit declined to address the remainder of the issues decided by the district court. Id. at 706. The United States Supreme Court denied certiorari. Snyder v Does # 1-5, 138 S Ct 55 (2017).
Shortly after the Sixth Circuit’s decision in Does I, six other plaintiffs filed a class-action complaint in the federal district court challenging the constitutionality of the 2011 SORA on the same grounds raised by the Does I plaintiffs. These plaintiffs also noted that although the Does I plaintiffs had received a favorable ruling from the Sixth Circuit on their ex post facto challenge, the state of Michigan had continued to enforce the 2011 SORA against all SORA registrants. Ultimately, the district court ruled for the plaintiffs and entered an order permanently enjoining the state of Michigan from enforcing the unconstitutional provisions of the 2011 SORA identified in Does I against any registrant and from enforcing the 2011 SORA retroactively. Doe v Snyder, 449 F Supp 3d 719, 737-738 (ED Mich, 2020) (Does II).10 In so doing, the district court rejected the possibility that
portions of the 2011 SORA or an earlier version of SORA could be constitutionally applied retroactively. Id. at 731-735. The district court also rejected the defendants’ request to certify these issues to this Court. Id. at 729-731.
IV. EX POST FACTO
This Court is asked to determine whether the retroactive application of the 2011 SORA violates federal and state constitutional ex post facto protections.11 Although the
Sixth Circuit in Does I determined that the retroactive application of the 2011 SORA violates federal constitutional ex post facto protections, this Court is not bound by that determination, see Johnson v VanderKooi, 502 Mich 751, 764 n 6; 918 NW2d 785 (2018), and the Sixth Circuit’s opinion did not assess an ex post facto challenge under our state constitutional law.
Both the Michigan and United States Constitutions prohibit ex post facto laws.
At issue here is the third type of ex post facto law, namely, whether the retroactive application of the 2011 SORA unconstitutionally increases the punishment for defendant’s CSC-II conviction. To answer this question, this Court must engage in a
If the Legislature intended to impose criminal punishment, the retroactive application of such a statute violates the ex post facto prohibitions, and the inquiry ends. Id. However, if the Legislature intended to impose a civil or regulatory remedy, this Court must then consider “whether the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it civil.” Id. (quotation marks, citation, and brackets omitted). To aid in that analysis, the United States Supreme Court has provided that the following nonexhaustive factors are relevant to the inquiry:
Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned . . . . [Kennedy v Mendoza-Martinez, 372 US 144, 168-169; 83 S Ct 554; 9 L Ed 2d 644 (1963) (citations omitted). See also Earl, 495 Mich at 43-44 (noting the Mendoza-Martinez factors as the proper avenue of analysis for this issue).]
Further, the Legislature’s manifest intent will be rejected only when “a party challenging the statute provides the clearest proof that the statutory scheme is so punitive either in purpose or effect to negate the State’s intention to deem it civil.” Kansas v Hendricks, 521 US 346, 361; 117 S Ct 2072; 138 L Ed 2d 501 (1997) (quotation marks, citation, and brackets omitted; emphasis added).
In 2003, the United States Supreme Court applied this two-step inquiry when it considered whether Alaska’s sex-offender registry statute violated state and federal ex post facto protections. Smith v Doe, 538 US 84; 123 S Ct 1140; 155 L Ed 2d 164 (2003). The Alaska registry statute required every convicted sex offender in the state to provide law enforcement with their name, aliases, identifying features, address (including anticipated changes of address), place of employment, date of birth, conviction information, driver’s license number, information about vehicles to which they had access, and postconviction history of medical treatment. Id. at 90. The information regarding driver’s license numbers, anticipated changes of addresses, and whether the registrant sought and obtained medical treatment was kept confidential; other information was available to the public online. Id. at 90-91. The amount of time that a person was required to remain registered with this system was based on the registrant’s number and type of convictions. Id. at 90. Two respondents who pleaded nolo contendere to sexual abuse of a minor before the registry scheme was enacted brought suit under
The United States Supreme Court first determined that the Alaska Legislature had intended its registry law to be nonpunitive, reasoning that the statutory text provided a
purpose of public safety; that the statute was codified within Alaska’s Health, Safety, and Housing Code; and that the authority to promulgate implementing procedures was vested in the Alaska Department of Public Safety. Id. at 93-96. It next considered whether the effects of the statutory scheme were so punitive in effect as to negate the Alaska Legislature’s nonpunitive intent. Id. at 97. The Court acknowledged that the Mendoza-Martinez factors were neither exhaustive nor individually dispositive, and the Court identified the following factors as particularly relevant to the case at hand: “whether, in its necessary operation, the regulatory scheme: [1] has been regarded in our history and traditions as a punishment; [2] imposes an affirmative disability or restraint; [3] promotes the traditional aims of punishment; [4] has a rational connection to a nonpunitive purpose; or [5] is excessive with respect to this purpose.” Id.
With regard to the first factor, whether the regulatory scheme has been regarded in our history and traditions as punishment, the Court reasoned that sex-offender registries are not traditional means of punishment because they were of relatively recent design. Id. The Court rejected the respondents’ argument that the registry resembled colonial-era shaming punishments because those punishments “involved more than the dissemination of information,” and the Court further noted that, although some registrants might experience negative effects because of public access to their information, “[o]ur system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment.” Id. at 98-99. Finally, the Court observed that the registry was “more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality.” Id. at 99.
With regard to the second factor, whether the regulatory scheme imposes an affirmative disability or restraint, the Court concluded that the registry did not do so because it did not impose any physical restraint. Id. at 100. It specifically observed that the registry allowed registrants to change jobs or residences as they desired and imposed no requirement to appear in person. Id. at 100-101.
With regard to the third factor, whether the regulatory scheme promotes traditional aims of punishment, the Court considered Alaska’s concession that the registry might deter future crimes but ruled that this concession did not render the registry punitive. Id. at 102 (“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.”) (quotation marks and citation omitted). The Court also held that the registry’s lack of individualized risk assessment did not render it retributive, reasoning that the registry logically related the length of reporting requirements to the amount and severity of the registrant’s convictions, which was consistent with the registry’s regulatory objective of public safety. Id. at 102-103.
With regard to the fourth factor, whether the regulatory scheme has a rational connection to a nonpunitive purpose, the Court held that the registry was rationally connected to the nonpunitive purpose of public safety because it alerted the public
Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism. The legislature’s findings are consistent with grave concerns over the high rate of recidivism among
convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is “frightening and high.” McKune v. Lile, 536 U.S. 24, 34, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002); see also id., at 33, 122 S.Ct. 2017 (“When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault” (citing U.S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 27 (1997); U.S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997))). [Smith, 538 US at 103.]
Taking into account all the Mendoza-Martinez factors, the Court concluded that any punitive effects of Alaska’s sex-offender registry did not overcome the Alaska Legislature’s intent to establish a civil regulatory scheme. Id. at 105-106. Accordingly, the retroactive application of the registry’s requirements did not violate federal constitutional ex post facto protections. Id. at 106.
Although Michigan’s SORA as initially enacted was similar to the Alaska sex-offender registry at issue in Smith, subsequent amendments have imposed additional requirements and prohibitions on registrants, warranting a fresh look at how the 2011 SORA fares under the constitutional ex post facto protections. See, e.g., Doe v State, 189 P3d 999, 1017 (Alas, 2008) (wherein the Alaska Supreme Court held that because of intervening amendments of its sex-offender registry that increased requirements and restrictions on registrants, the retroactive application of its sex-offender registry laws violated ex post facto protections).
A. LEGISLATIVE PURPOSE
This Court must first consider “whether the Legislature intended the statute as a criminal punishment or a civil remedy.” Earl, 495 Mich at 38. When the Legislature amended SORA in 2002, it included the following statement:
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. [
MCL 28.721a .]
This description indicates that the Legislature’s intent in enacting SORA was the promotion of public safety, a nonpunitive goal. Further, SORA is codified in Chapter 28 of the Michigan Compiled Laws rather than Chapter 750, the Michigan Penal
B. PUNITIVE EFFECTS
Because we conclude that the Legislature likely intended SORA as a civil regulation, we must now determine “whether the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it civil.” Earl, 495 Mich at 38 (quotation marks, citation, and brackets omitted). Again, a challenging party must provide
“the clearest proof” of the statutory scheme‘s punitive character in order “to [successfully] negate the State‘s intention to deem it civil.” Hendricks, 521 US at 361 (quotation marks, citation, and brackets omitted). In determining whether defendant has satisfied this burden, we do not examine individual provisions of SORA in isolation but instead assess SORA‘s punitive effect in light of all the act‘s provisions when viewed as a whole. See Smith, 538 US at 92, 94, 96-97, 99, 104-105; see also Doe v State, 167 NH 382, 402; 111 A3d 1077 (2015) (holding that the punitive-effect “inquiry cannot be answered by looking at the effect of any single provision in the abstract“; rather, a court “must consider the effect of all the provisions and their cumulative impact upon the defendant‘s rights“) (quotation marks and citations omitted).13 We assess in turn each of the Mendoza-Martinez factors that the United States Supreme Court identified as relevant in Smith.
1. HISTORY AND TRADITION
This Mendoza-Martinez factor asks this Court to consider whether SORA has “been regarded in our history and traditions as a form of criminal punishment.” Earl, 495 Mich at 45. Sex-offender registries are of relatively recent origin and so have no direct analogies in this nation‘s history and traditions. See Smith, 538 US at 97. However, the 2011 SORA does resemble, in some respects, the traditional punishments of banishment, shaming, and parole.
In regard to banishment, the 2011 SORA‘s student-safety zones excluded registrants from working, living, or loitering within 1,000 feet of school property. See
The 2011 SORA also resembles the punishment of shaming. The breadth of information available to the public—far beyond a registrant‘s criminal history—as well as the option for subscription-based notification of the movement of registrants into a particular zip code, increased the likelihood of social ostracism based on registration. While the initial version of SORA might have been “more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality,” Smith, 538 US at 99, its 2011 iteration contained more personal information and required less effort to access that information. The public-facing registry contained not only information regarding a registrant‘s criminal conviction but also the registrant‘s home address, place of employment, sex, race, age, height, weight, hair and eye color, discernible features, and tier classification. When SORA‘s notification provision was used, members of the public were alerted to this information without active effort on their behalf, in sharp contrast with the endeavor of visiting an official archive for information. Further, a registrant‘s information could precede his entrance into a community, increasing the likelihood of ostracism.
Finally, the 2011 SORA also resembles parole.15 Although registrants need not
In conclusion, the 2011 SORA bears significant resemblance to the traditional punishments of banishment, shaming, and parole because of its limitations on residency and employment, publication of information and encouragement of social ostracism, and imposition of significant state supervision.
2. AFFIRMATIVE DISABILITY OR RESTRAINT
This Mendoza-Martinez factor asks this Court to “inquire how the effects of” the 2011 SORA “are felt by those subject to it.” Smith, 538 US at 99-100. “If the disability or restraint is minor and indirect, its effects are unlikely to be punitive.” Id. at 100.
Imprisonment is the “paradigmatic” affirmative restraint, id., and the 2011 SORA ensured adherence to its many requirements on the potential for imposition of imprisonment. Although SORA has always contained such a penalty provision, the conditions that a registrant must satisfy to avoid incarceration have increased. See Doe, 167 NH at 403 (explaining that courts have found sex-offender registry requirements “to be amplified” when “the failure to comply with the requirements could result in harsh prosecution and penalties, such as a fine or imprisonment“).
The in-person reporting requirements imposed by former
In sum, the 2011 SORA imposed onerous restrictions on registrants by restricting their residency and employment, and it also imposed significant affirmative obligations by requiring extensive in-person reporting.
3. TRADITIONAL AIMS OF PUNISHMENT
This Mendoza-Martinez factor asks the Court to consider whether the 2011 SORA promotes the traditional aims of punishment: retribution and specific and general deterrence. See Earl, 495 Mich at 46.
As the prosecutor concedes, SORA promotes the aim of deterrence. Deterrence is necessarily encompassed by SORA‘s stated purpose of “preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders.”
The 2011 SORA also supports the aim of retribution. The 2011 SORA was imposed on offenders for the sole fact of their prior offenses and made no individualized determination of the dangerousness of each registrant, indicating that SORA‘s restrictions were retribution for past offenses rather than regulations to prevent future offenses.18 See Smith, 538 US at 109 (Souter, J., concurring in the judgment) (“The fact that the Act 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; 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.“).
In sum, because the 2011 SORA aimed to protect the public through deterrence and because its restrictions appear retributive, the 2011 SORA promotes the traditional aims of punishment.
4. CONNECTION TO NONPUNITIVE PURPOSE
Next, this Court must consider whether the 2011 SORA has a rational connection to a nonpunitive purpose. See Earl, 495 Mich at 46. A rational connection is all that is required; “[a] statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance.” Smith, 538 US at 103 (opinion of the Court).
Again, the asserted goal of the Legislature is to “provide law enforcement and the people of this state with an appropriate, comprehensive, and effective means to monitor those persons” who have committed a specified sex offense and who are therefore considered to “pose[] a potential serious menace and danger to the health, safety, morals, and welfare of the people . . . of this state.”
5. EXCESSIVENESS
The final Mendoza-Martinez factor to be assessed is “whether the regulatory means chosen are reasonable in light of the nonpunitive objective.” Smith, 538 US at 105 (opinion of the Court). Similar to the rational-connection determination, the lynchpin of this analysis is “reasonableness,” not “whether the legislature has made the best choice possible to address the problem it seeks to remedy.” Id.
The Legislature‘s asserted nonpunitive goal was based on the Legislature‘s determination that “a person who has been convicted of committing an offense covered by [SORA] poses a potential serious menace and danger to the health, safety, morals, and welfare of the people, and particularly the children, of this state.”
Defendant—as well as his similarly situated counterparts throughout the nation
Given the uncertainty of the 2011 SORA‘s efficacy, the restraints it imposed were excessive. Over 40,000 registrants were subject to the 2011 SORA‘s requirements without any individualized assessment of their risk of recidivism. The duration of an offender‘s reporting requirement was based solely on the offender‘s conviction and not the danger he individually posed to the community. Registrants remained subject to SORA—including the stigma of having been branded a potentially violent menace by the state—long after they had completed their sentence, probation, and any required treatment. All registrants were excluded from residing, working, and loitering within 1,000 feet of a school, even those whose offenses did not involve children and even though most sex offenses involving children are perpetrated by a person already known to the child. As described, this restriction placed significant burdens on registrants’ ability to find affordable housing, obtain employment, and participate as a member of the community. Registrants were also required to make frequent in-person reports to law enforcement upon minor life changes and regular in-person reports—sometimes multiple times a year—even when no information had changed. These demanding and intrusive requirements, imposed uniformly on all registrants regardless of an individual‘s
Considering the Mendoza-Martinez factors cumulatively, the 2011 SORA‘s aggregate punitive effects negate the state‘s intention to deem it a civil regulation. See Earl, 495 Mich at 38. Accordingly, the retroactive imposition of the 2011 SORA increases registrants’ punishment for their committed offenses in violation of federal and state constitutional prohibitions on ex post facto laws.21
V. REMEDY
Having concluded that the retroactive application of the 2011 SORA violates constitutional ex post facto provisions, we turn to the issue of remedy. Although the 2011 SORA did not contain a general severability provision,22 Michigan has a legislative preference for severability, as expressed in
In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the Legislature, that is to say:
If any portion of an act or the application thereof to any person or circumstances shall be found to be invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can be given effect without the invalid portion or application, provided such remaining portions are not determined by the court to be inoperable, and to this end acts are declared to be severable. [See also Blank v Dep‘t of Corrections, 462 Mich 103, 122-123; 611 NW2d 530 (2000) (stating that the “general rule” regarding laws determined to be unconstitutional “favors severability“).]
Because this Court has found that the retroactive application of the 2011 SORA is unconstitutional, this Court must now consider whether “the remaining portions or applications of the act . . . can be given effect without the invalid . . . application . . . .”
Outside the tiered classification system, certain discrete provisions of the 2006 and 2011 amendments—including the student-safety zones of
The prosecutor suggests that severance would not constitute problematic guesswork of legislative intent here because the Legislature has demonstrated its intent regarding the continued viability of SORA through its recent passage of 2020 PA 295. In light of the federal courts’ rulings in Does I and Does II that the 2011 SORA violates federal constitutional ex post facto protections, the Legislature chose to amend SORA to cure its constitutional infirmity. These amendments included the removal of the student-safety zones; the removal of the retrospective application of in-person reporting requirements for vehicle information, electronic mail addresses, Internet identifiers, and telephone numbers,
We decline to adopt this proposed remedy. To begin, the intent of a prior legislature cannot be determined by looking at the actions of a subsequent one. See United States v Price, 361 US 304, 313; 80 S Ct 326; 4 L Ed 2d 334 (1960) (“[T]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.“); Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 177 n 33; 615 NW2d 702 (2000). The 2019–2020 Legislature acted nearly 10 years after the 2011–2012 Legislature and did not consist of the same membership. Moreover, the 2019–2020 Legislature was considering not only a successful federal ex post facto challenge against SORA but also successful due-process and First Amendment challenges against SORA. See Does II, 449 F Supp 3d at 737-738.
Further, while the 2019–2020 Legislature did remove the provisions detailed earlier in this opinion, it did so at the same time it also introduced a bevy of other changes. These changes include both additional ameliorative changes and more
We also reject the proposal of amicus the Gratiot County Prosecutor‘s Office to remedy the constitutional violation by excising the particular provisions of the 2011 SORA that extend beyond its federal counterpart, the Sex Offender Registration and Notification Act (SORNA),
Amicus is correct that legislative bill analyses regarding the 2011 SORA amendments indicate that the amendments would conform SORA to SORNA. See House Legislative Analysis, SB 188-189, 206 (March 22, 2011) (stating that the senate bills at issue would revise SORA “to conform to mandates under” SORNA and remarking that “[f]ailure to comply with SORNA will result in a state losing 10 percent of Byrne Justice Grant funding used to support law enforcement efforts“). But we have in the past been skeptical of the value of bill analyses in determining the Legislature‘s intent. See Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 587 n 7; 624 NW2d 180 (2001) (“The problem with relying on bill analyses is that they do not necessarily represent the
views of even a single legislator. Rather, they are prepared by House and Senate staff.“). Further, the fact that the 2011 Legislature did not amend SORA to create an identical statutory scheme to SORNA and instead included several additional provisions27 indicates that the Legislature was, at the very least, not motivated solely by a desire to conform to SORNA. This proposed remedy raises again the prospect of this Court engaging in lawmaking on tenuous assumptions of the Legislature‘s intent, and we decline to do so.
Finally, in the absence of a remedy through severability, the prosecutor proposes that a former version of SORA can be applied to defendant through revival. In its usual application, revival occurs when an amendment of a statute is repealed and the former version of the statute is revived by the repeal of the amendatory provision. See Dykstra v Holden, 151 Mich 289, 293; 115 NW 74 (1908). Revival also applies when, instead of a legislative repeal of a statutory amendment, the courts find the amendment unconstitutional. When the amendment is constitutionally invalid, the statute behaves as if the amendment never existed. See, e.g., People v Smith, 246 Mich 393, 398; 224 NW 402 (1929) (“We must hold the amendment . . . unconstitutional, and therefore no amendment. This holding leaves the law as it was before the abortive attempt to amend.“); McClellan v Stein, 229 Mich 203, 213; 201 NW 209 (1924) (“We are therefore constrained to hold the law invalid, which leaves all preceding laws upon that subject in force.“). Michigan has a legislative preference against revival,
Revival presents special challenges in the context of an ex post facto challenge to a statute with as complicated a legislative history as SORA. Our holding does not affect the prospective application of the 2011 SORA to registrants who committed listed offenses after 2011, from the time of their conviction to the effective date of the 2020 SORA amendments. Accordingly, it is not accurate to say that the SORA amendments failed to alter the statutory scheme, leaving the previous version in place unchanged, as with the usual revival context. Compare with Smith, 246 Mich at 398; McClellan, 229 Mich at 213. It is possible that revival could nonetheless be applied only to pre-2011 registrants under a theory that the amendments were invalid as to retroactive application only, leaving previous SORA formulations active.29 However, doing so raises the same concerns of legislative infringement and practical complications discussed in conjunction with severability, and the prosecutor has offered no response to these concerns raised by defendant and amici.
The Legislature has modified SORA over the past nearly 30 years in a series of amendments introducing new provisions; contracting, expanding, and removing established provisions; creating new ameliorative provisions; and in the case of the 2011 amendments, completely restructuring the statutory scheme. Accordingly, SORA presents a different situation altogether than the prototypical single statutory amendment that represents the Legislature‘s intent to change a singular provision of the law and that can be neatly foreclosed from certain applications. In this case, given the extensive legislative history of SORA, it is unclear whether revival of earlier SORA formulations is consistent with the Legislature‘s intent. See Ayotte, 546 US at 330 (“[T]he touchstone for any decision about remedy is legislative intent, for a court cannot use its remedial powers to circumvent the intent of the legislature.“) (quotation marks and citation omitted). And, although not a dispositive obstacle, the sheer volume of
Having determined that severability and revival are inappropriate tools to remedy the constitutional violation in this case, we are constrained to hold that the 2011 SORA may not be retroactively applied to registrants whose criminal acts subjecting them to registration occurred before the enactment of the 2011 SORA amendments.30
VI. CONCLUSION
We hold that the 2011 SORA, when applied to registrants whose criminal acts predated the enactment of the 2011 SORA amendments, violates the constitutional prohibition on ex post facto laws. As applied to defendant Betts, because the crime subjecting him to registration occurred in 1993, we order that his instant conviction of failure to register as a sex offender be vacated.
The case is remanded for further proceedings consistent with this opinion.
Elizabeth T. Clement
Bridget M. McCormack
Richard H. Bernstein
Megan K. Cavanagh
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v PAUL J. BETTS, JR., Defendant-Appellant.
No. 148981
STATE OF MICHIGAN SUPREME COURT
ZAHRA, J. (concurring in part and dissenting in part).
I join Parts I and II of Justice VIVIANO‘s opinion concurring in part and dissenting in part. I agree with his application of this Court‘s severability precedents to Michigan‘s Sex Offenders Registration Act,
Brian K. Zahra
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v PAUL J. BETTS, JR., Defendant-Appellant.
No. 148981
STATE OF MICHIGAN SUPREME COURT
VIVIANO, J. (concurring in part and dissenting in part).
I generally agree with the majority‘s holding that Michigan‘s Sex Offenders Registration Act (SORA),
I. PRINCIPLES OF SEVERABILITY
Our “Court has long recognized” that unconstitutional portions of a statute are not to be given effect if the constitutional portions of the statute remain operable. See In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38, 490 Mich 295, 345; 806 NW2d 683 (2011). Our general rule therefore favors severability. Id.; see also 2 Singer, Sutherland Statutes and Statutory Construction (7th ed, November 2020 update), § 44:1 (“There is a presumption in favor of severability.“).1 As Justice Thomas Cooley
The Legislature has codified this favorable view of severability in
In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature, that is to say:
If any portion of an act or the application thereof to any person or circumstances shall be found to be invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can be given effect without the invalid portion or application, provided such remaining portions are not determined by the court to be inoperable, and to this end acts are declared to be severable.3
Under this statute, a court must “consider, first, whether the Legislature expressed that the provisions at issue were not to be severed from the remainder of the act.” Blank v Dep‘t of Corrections, 462 Mich 103, 123; 611 NW2d 530 (2000). “If it did not, then [a court] must determine whether the unconstitutional portions are so entangled with the others that they cannot be removed without adversely affecting the operation of the act.” Id. Put differently, a court must determine that (1) the Legislature manifested an intent to remove the statute at issue from the general presumption of severability in
II. ANALYSIS
A. THE LEGISLATURE‘S MANIFEST INTENT
The first question when applying
B. OPERABILITY OF THE VALID PORTIONS
The central question therefore is whether severing the unconstitutional portions of SORA leaves a complete and operable statute in place. The majority proclaims that even if removing the 2006 and 2011 amendments from SORA resulted in a constitutional statute, those amendments “cannot be excised from retroactive application because doing so renders the statute unworkable.” But severance does not require taking a machete to the statute—few statutes would remain operable after that approach. Instead, “[w]hen confronting a constitutional flaw in a statute, the court should try to invalidate no more of the statute than necessary.” 2 Singer, Sutherland Statutes and Statutory
When considering whether smaller portions could be severed, the majority acknowledges that two pieces of the statute—the student-safety zones in
Under these circumstances,
C. APPLICATION
Severing the unconstitutional portions of the statute does not require legislative decision-making. It does, however, require precision in defining the unconstitutional sections. The majority assesses the “aggregate effects of the 2011 SORA rather than the effects of each individual amendment.” While the United States Supreme Court suggested such an analysis in Smith v Doe, 538 US 84, 99-100; 123 S Ct 1140; 155 L Ed 2d 164 (2003), neither that Court nor ours has extended this mode of analysis to the question of severability. The United States Supreme Court itself has stated that portions of a statute that violate the Ex Post Facto Clause might be severed. See Weaver v Graham, 450 US 24, 36 n 22; 101 S Ct 960; 67 L Ed 2d 17 (1981).
The arguments in this case have generally focused on the in-person reporting requirements, the student-safety zones, and the public notification of the tiered classification system. My analysis likewise centers on these provisions. For the reasons that follow, I would sever a few words from the reporting requirement, I would not decide how much or little to sever of the student-safety zones, and I would not sever any of the tiered-classification system, which I do not believe is unconstitutional.
1. IMMEDIATE IN-PERSON REPORTING REQUIREMENT
At the time of defendant‘s present conviction for violating SORA, this requirement provided that an individual who resides in Michigan and is required to register under SORA “shall report in person and notify the registering authority having jurisdiction where his or her residence or domicile is located immediately after” various events occur, including changes of residence or domicile, establishment of e-mail addresses or designations used on the Internet, and when he or she “purchases or begins to regularly operate any vehicle” or discontinues ownership or use of the vehicle.
The majority‘s analysis demonstrates that this provision is unconstitutional punishment because it required immediate in-person reporting on a host of quotidian events, such as signing up for a new e-mail account. As defendant has persuasively argued, the need to immediately report in person is what restrains and disables him, which is one of the factors in the ex post
Standing alone, a reporting requirement is not disruptive or restraining.5 Forcing a registrant to call or otherwise contact the authorities, even “immediately,” i.e., within three days, is not overly burdensome. But the requirement that the registrant arrange their affairs so that they can show up in person within three days after relatively routine events is, as the majority observes, a significant burden.
With regard to the excessiveness of the requirements in relation to a nonpunitive purpose, it is again the need to report in person within three days that proves problematic. The desire to keep close tabs on registrants by requiring frequent reporting bears a reasonable relationship to the nonpunitive purpose of protecting the public. The majority and various parties and amici cite statistical research indicating that sex offenders do not have unusually high recidivism rates. However, I am not yet ready to say that the Legislature was unreasonable in requiring frequent reporting to combat recidivism. For one thing, the research rests on data concerning sex offenders who were caught committing a subsequent offense. See, e.g., Hanson et al, High-Risk Sex Offenders May Not Be High Risk Forever, 29 J Interpersonal Violence 2792, 2796 (2014) (defining “offense-free” as “no new sexual offenses were detected during [the] time period“). And it is well established that sex crimes are seriously underreported. See Morgan & Kena, US Department of Justice, Criminal Victimization, 2016: Revised (October 2018, NCJ 252121), p 7 (showing that in 2016 only 23.2% of rapes and sexual assaults were reported, making it the most underreported class of crimes).6 As a result, it remains possible, if not likely, that the recidivism rates reported in the studies ” ‘underestimate the risk an offender will commit an offense over [his or her] lifetime.’ ” Belleau v Wall, 811 F3d 929, 933 (CA 7, 2016), quoting DeClue & Zavodny, Forensic Use of the Static-99R: Part 4. Risk Communication, 1 J Threat Assessment & Mgmt 145, 149 (2014); Scurich & John, Abstract, The Dark Figure of Sexual Recidivism, 37 Behav Sci & L 158 (2019) (“Virtually all of the studies [of sexual offender recidivism] define recidivism as a new legal charge or conviction for a sexual crime . . . . It is uncontroversial that such a definition of recidivism underestimates
Even were I more inclined to credit the studies on which the majority relied, I would defer to the Legislature on such matters when there is room for debate. Given the nature of our role of adjudicating individual disputes and the consequent institutional limitations this role entails, we must exercise “humility about the capacity of judges to evaluate the soundness of scientific and economic claims[.]” Barrett, Countering the Majoritarian Difficulty, 32 Const Comment 61, 74 (2017) (reviewing Barnett, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (New York: HarperCollins, 2016)).
Thus, the immediate reporting requirements are not excessive standing alone. What makes them excessive is the need to report in person. There has been no evidence put forward to believe that registrants are particularly apt to shirk their reporting obligation or to make false reports if they are not in person. Indeed, it is hard to see any connection between the in-person requirement and the contents of the required reports. For example, how does showing up in person make it more or less believable that the registrant really changed his or her e-mail address? I would therefore find that the in-person requirement is what transforms the immediate reporting requirement into a prohibited punishment under the Ex Post Facto Clauses.
Having pinpointed the source of the constitutional infirmity, the severance analysis is straightforward: I would sever the phrase “report in person and” from
2. STUDENT-SAFETY ZONES
With regard to the student-safety zones, the various questions posed by the majority about what to sever are largely misplaced. Even if the sections creating these zones were struck down in their entirety, the majority admits that the remaining provisions of SORA would be operable. These sections are tucked in a separate corner of SORA called “article II.”
There is no need in this case to decide which parts of these sections should be severed. Defendant was not convicted under these provisions. Indeed, even he admits that if they were severed, his conviction
3. TIERED-CLASSIFICATION SYSTEM
The tiered-classification system is a different story. Under this framework, the registrant is publicly placed into one of three tiers depending on the offense of which he or she was convicted. The majority does not spend much time explaining the constitutional infirmities with the classification system. It notes that SORA‘s public broadcasting of information resembles the historic punishment of shaming. And it observes that SORA resembles the aim of retribution because it classifies individuals without regard to individualized risk assessments. But once again, it is unclear which specific provisions the majority finds constitutionally troublesome for purposes of the severability analysis. As amicus the Gratiot County Prosecutor rightly notes, however, the crux of defendant‘s argument was not with the lack of individualized risk assessments (although he does cover that) but more specifically with the public nature of the tiered classifications.
Specificity matters with respect to the tiered system. The majority correctly explains that the 2011 amendments “restructured SORA through the imposition of a tiered classification system, and the duties and requirements of each registrant were based on that registrant‘s tier classification.” Severing the tiers would, as the majority concludes, undoubtedly result in an unworkable statute. The issues therefore are whether and to what extent the tiered system is unconstitutional and can be severed. There are two aspects of this issue that must be addressed: (1) Is it punitive to use criminal offenses as the basis for the tiered classification rather than an individualized risk assessment? and (2) Does the public availability of the registrant‘s tier classification constitute punishment?
With regard to individualized risk assessments, I struggle to see how the Legislature is imposing a punishment by tying registration classifications to the offense of which the individual was convicted. See
The Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences. We have upheld against ex post facto challenges laws imposing regulatory burdens on individuals convicted of crimes without any corresponding risk assessment. . . . As stated in Hawker [v New York, 170 US 189, 197; 18 S Ct 573; 42 L Ed 1002 (1898)]:
“Doubtless, one who has violated the criminal law may thereafter reform and become in fact possessed of a good moral character. But the legislature has power in cases of this kind to make a rule of universal application . . . .” Ibid. The 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 US at 103-104.]
Given the Supreme Court‘s holding, it is not surprising that the federal sex offender registration statute similarly links the registrant‘s tier classification to the type of offense of which he or she was convicted. See
Moreover, it is not clear that an individualized risk assessment offers a superior means for accurately appraising the probability that the registrant will commit another sex offense. An assessment tool like the Static-99R that the Attorney General endorses here produces “estimates . . . [that] pertain only to the odds that the released offender will subsequently be arrested for or convicted of—in short, detected—committing further sex crimes.” Belleau, 811 F3d at 933. As noted above, the data used in such an assessment relates to the risk of detection rather than the risk that the registrant will actually commit a new offense, whether detected or not; as a result, it might underestimate the relevant probability. Id. For these reasons, I cannot see how the lack of such a metric and the reliance on the convicted offense constitutes a punishment.
Furthermore, the publication of the registrant‘s tier classification is not a punishment. Indeed, where, as here, the tier simply reflects the underlying offense, the tier classification itself provides the public with no new information. Cf. Smith, 538 US at 101 (“Although the public availability of the information may have a lasting and painful impact on the convicted sex offender, these consequences flow not from the Act‘s registration and dissemination provisions, but from the fact of conviction, already a matter of public record.“).8
Therefore, I would not find the tiered-classification system to be unconstitutional.
D. SUMMARY
In short, while I generally concur in the majority‘s conclusion that SORA violates the Ex Post Facto Clauses of the state and federal Constitutions, I disagree that the offending statutory provisions applicable
My analysis would require upholding defendant‘s conviction, given that he violated the severed version of
III. HISTORICAL APPROACH TO SEVERABILITY
To the extent that the majority‘s opinion reflects existing precedent—specifically, the focus on the Legislature‘s hypothetical intentions—the majority‘s opinion raises questions that should be considered in an appropriate future case. In particular, I would consider whether our precedent has focused too heavily on legislative intent and whether a more historically grounded approach to severability would better reflect the nature of judicial decision-making and the text of
The historical approach to severability rests on a few fundamental principles. Our courts do not sit as councils of revision, wielding a pen to strike out the offending portions of the statute or to remove the law from the statute books. See Citizens Protecting Michigan‘s Constitution v Secretary of State, 503 Mich 42, 92 n 149; 921 NW2d 247 (2018) (“Despite our ruling [that an enacted provision is unconstitutional], we have no power to make the law disappear.“). Our authority is limited to the exercise of judicial power, by which we can “hear and determine controversies between adverse parties, and questions in litigation.” Daniels v People, 6 Mich 381, 388 (1859). The judicial ” ‘power exercised is that of ascertaining and declaring the law applicable to the controversy.’ ” Seila Law LLC v Consumer Fin Protection Bureau, 591 US ___, ___; 140 S Ct 2183, 2219; 207 L Ed 2d 494 (2020) (Thomas, J., concurring in part and dissenting in part), quoting Massachusetts v Mellon, 262 US 447, 488; 43 S Ct 597; 67 L Ed 1078 (1923). “In the context of a constitutional challenge, ‘[i]t amounts to little more than the negative power to disregard an unconstitutional enactment.’ ” Seila Law LLC, 591 US at ___; 140 S Ct at 2219 (Thomas, J., concurring in part and dissenting in part), quoting Mellon, 262 US at 488. Given the nature of our power, we cannot “excise, erase, alter, or otherwise strike down a statute.” Seila Law LLC, 591 US at ___; 140 S Ct at 2220 (Thomas, J., concurring in part and dissenting in part).
In light of these central principles, courts historically did not claim to sever or strike down statutory language when facing statutes that were partially unconstitutional. Instead, they would simply apply the challenged statute together with the Constitution to the case at hand; if the statute conflicted with the Constitution, courts held the “law void to the extent of repugnancy,” but “there was no ‘next step’ in which courts inquired into whether the legislature would have preferred no law at all to the constitutional remainder” of the statute. Walsh, Partial Unconstitutionality, 85 NYU L Rev 738, 777 (2010); see
The historical approach would appear to solve some of the problems with the current framework. One of the most significant difficulties is with the proposition that severability requires a court to determine whether the Legislature would have passed the statute without the unconstitutional portions had it known of their defects. See In re Request for Advisory Opinion, 490 Mich at 345.10 This question essentially forces a court to speculate about what the Legislature intended should occur if a statute is found partially unconstitutional—yet, the Legislature likely never thought about that scenario and did not provide for it through enacted text. The answer to the question—to the extent there is one—will be difficult to ascertain, and the search for it will take courts away from their prescribed role in determining what the statutory text means. See Murphy, 584 US at ___; 138 S Ct at 1486-1487 (Thomas, J., concurring). As Justice Thomas wrote, the modern approach “requires judges to determine what Congress would have intended had it known that part of its statute was unconstitutional. But it seems unlikely that
Another potential problem with the modern approach is that it enables a court to pass on the constitutionality of provisions that have scarce relationship to the case before the court. In other words, it potentially enables parties to challenge statutory provisions that they might lack standing to challenge. See Murphy, 584 US at ___; 138 S Ct at 1487 (“If one provision of a statute is deemed unconstitutional, the severability doctrine places every other provision at risk of being declared nonseverable and thus inoperative” irrespective of whether the plaintiff had standing to attack those provisions.). Severability might enable parties to evade a constitutionally valid statutory provision that applies to the dispute simply because other parts of the statute, which do not apply in the case, are unconstitutional. See Zimmerman, Supplemental Standing For Severability, 109 Nw U L Rev 285, 304 (2015) (noting the possibility that a party could “argue that, even if the part of the statute that applies to them is constitutional, that part is invalid because some other part of the statute is unconstitutional and cannot be severed“); see generally 2 Singer, Sutherland Statutes and Statutory Construction (7th ed, November 2020 update), § 44:2 (noting that severability raises this possibility “whenever a person not subject to the invalid provision, but nevertheless within the scope of the statute, seeks to attack the act by showing the entire act to be invalid by reason of the invalidity of a part“).11 A few federal courts have found that a party lacks standing to make such arguments, although the United States Supreme Court has addressed such arguments without questioning standing. See Supplemental Standing, 109 Nw U L Rev at 306-307 (discussing the caselaw).12
IV. CONCLUSION
My questions concerning the historical approach to severability are for another day. Applying the plain language of
David F. Viviano
Brian K. Zahra (except as to Part III)
WELCH, J., did not participate in the disposition of this case because the Court considered it before she assumed office.