PEOPLE v DOWDY
Docket No. 140603
Supreme Court of Michigan
July 11, 2011
489 Mich 373
Argued November 5, 2010 (Calendar No. 5). Decided July 11, 2011.
PEOPLE v DOWDY
Docket No. 140603. Argued November 5, 2010 (Calendar No. 5). Decided July 11, 2011.
Randall L. Dowdy, a convicted sex offender, was charged in the Ingham Circuit Court, Thomas L. Brown, J., with failure to comply with the requirements of the Sex Offenders Registration Act (SORA),
In an opinion by Chief Justice YOUNG, joined by Justices MARKMAN, MARY BETH KELLY, and ZAHRA, the Supreme Court held:
Homeless sex offenders who are subject to SORA must comply with its reporting and notification requirements.
1. The Legislature described the scope and intent of SORA broadly. The act is intended 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 by providing an appropriate, comprehensive, and effective means to monitor those persons. SORA requires all sex offenders convicted of one or more listed offenses that are felonies to report quarterly and in person to a law enforcement agency for the verification of their residence or domicile,
2.
3. SORA does not define “domicile,” but because it used both “residence” and “domicile” to describe what a sex offender can register, construing the two terms as synonymous in this case would render one of the terms nugatory. Michigan courts have defined “domicile” as the place where a person has voluntarily fixed his or her abode not for a mere special or temporary purpose, but with a present intention of making it the person‘s home, either permanently or for an indefinite or unlimited length of time. Similarly, a “domicile” is the place where a person has his or her home, with no present intention of removing, and to which he or she intends to return after going elsewhere. The essential characteristic of a domicile that separates it from a residence under Michigan law is that every person has a domicile.
4. Even if a homeless sex offender cannot establish a residence under SORA, the offender can still report sufficient information about where he or she lives to identify a domicile. Difficulties in verifying an offender‘s information do not excuse the offender from complying with SORA‘s requirements, which may be done by the procedure set forth in the state police order.
5. The requirement that an offender report in person to law enforcement four times a year is unconditional, contains no exceptions or exclusions for homelessness, and applies regardless of the stability of where an offender resides or is domiciled. Any difficulty verifying the truthful information provided by a homeless sex offender is the responsibility of the law enforcement agency. Sixteen quarters passed without defendant ever having complied with the quarterly reporting requirement. Moreover, because the record indicated that defendant was no longer permitted at the shelter where he had resided, his residence had been vacated or changed, at which point he had 10 days to notify law enforcement that his registered residence or domicile was no longer accurate, regardless of whether he could identify his new residence or domicile. The lower courts clearly erred by dismissing the charges. Where defendant was domiciled, however, is a question of fact that must be resolved on remand to the circuit court.
Reversed and remanded.
Justice MARILYN KELLY, joined by Justices CAVANAGH and HATHAWAY, dissenting, analyzed the definitions of “residence” and “domicile” and would have held that because defendant did not have a residence or domicile as those terms are used in SORA, he could not be held criminally liable for failure to register or report his residence or domicile. Justice MARILYN KELLY further noted that the state police order permitting entry of the fictitious address “123 Homeless” in the SORA registry contravened the language of SORA.
1. CRIMINAL LAW - SEX OFFENDERS REGISTRATION ACT - HOMELESS SEX OFFENDERS.
Homeless sex offenders who are subject to the Sex Offenders Registration Act must comply with its reporting and notification requirements (
2. CRIMINAL LAW - SEX OFFENDERS REGISTRATION ACT - WORDS AND PHRASES - RESIDENCE.
The Sex Offenders Registration Act defines a residence as the place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging; this definition contemplates a place, not necessarily a specific street address or even a physical structure (
3. CRIMINAL LAW - SEX OFFENDERS REGISTRATION ACT - WORDS AND PHRASES - DOMICILE - HOMELESS SEX OFFENDERS.
For purposes of the Sex Offenders Registration Act, a domicile is the place where a person has voluntarily fixed his or her abode, not for a mere special or temporary purpose but with a present intention of making it his or her home, either permanently or for an indefinite or unlimited length of time, and to which he or she intends to return after going elsewhere; every homeless sex offender can report sufficient information about where he or she lives to identify a domicile (
State Appellate Defender (by Christine A. Pagac) for defendant.
Amici Curiae:
Ronald J. Schafer and Terrence E. Dean for the Prosecuting Attorneys Association of Michigan.
Legal Aid of Western Michigan (by Miriam Aukerman) for Jane Poe and others.
Bill Schuette, Attorney General, John J. Bursch, Solicitor General, and Mark G.
YOUNG, C.J. We granted leave to appeal in this case to determine whether homeless sex offenders are obligated to comply with the registration requirement imposed by the Sex Offenders Registration Act (SORA).1 Specifically, we consider whether homeless sex offenders have a “residence” or “domicile” such that they can comply with the statute‘s registration requirements. We hold that homelessness is not a bar to compliance with SORA because homelessness does not preclude an offender from entering a police station and reporting to a law enforcement agency regarding the offender‘s residence or domicile. The Legislature intended SORA to be a comprehensive system that requires all sex offenders to register, whether homeless or otherwise. Therefore, we reverse the Court of Appeals’ judgment and remand this case for trial.
I. FACTS AND PROCEDURAL HISTORY
In 1984, defendant, Randall Lee Dowdy, pleaded guilty to a charge of kidnapping, five counts of first-
degree criminal sexual conduct (CSC-I), and a charge of possession of a firearm during the commission of a felony.2 Defendant remained incarcerated until 2002.
As a consequence of defendant‘s CSC-I convictions, he is required to register as a sex offender.3 Defendant signed a form upon being released from incarceration acknowledging that his obligations under SORA had been explained to him. Defendant registered his residence as 430 North Larch, Lansing, Michigan, which is a location of the Volunteers of America (VOA), a homeless shelter.4 Defendant obtained services at the VOA until the fall of 2006, when the VOA staff discovered that he was a sex offender. He left the VOA in accordance with its policy barring sex offenders from receiving its services. It appears that defendant was homeless at all times relevant to this case.
In 2006, the Lansing Police Department attempted to verify where defendant was living. According to police records, the last time that defendant reported his residence or domicile, as SORA requires, was in November 2002. In October 2006, the police visited the VOA in a further attempt to verify defendant‘s information and determined that he no longer received services there. On the basis of these facts, the Ingham County Prosecutor charged defendant with violating the reporting and notification requirements of SORA.5
After a preliminary examination, defendant was bound over to the Ingham
On remand, a Court of Appeals panel affirmed. The Court reasoned that homeless individuals have neither a residence nor a domicile as SORA defines those terms.7 The panel explained that “residence” referred to “a place, a dwelling, an abode, where an individual has a ‘regular place of lodging,’ ” and held that “[t]he provisional location where a homeless person happens to spend the night” does not satisfy the dictionary definitions of “lodging.”8 Therefore, the panel held that the statutory language required only those sex offenders with a “residence” or a “domicile” to notify law enforcement and that, because the homeless have neither, they cannot comply with the statute‘s require-
ments.9 We granted leave to appeal to consider whether homeless sex offenders can comply with SORA.10
II. STANDARD OF REVIEW
Issues of statutory construction are questions of law that are reviewed de novo.11 “The cardinal rule of statutory construction is to discern and give effect to the intent of the Legislature.”12 Courts must construe a statute in a manner that gives full effect to all its provisions.13 If the language of a statute is clear and unambiguous, this Court must enforce the statute as written.14 To the extent that constitutional issues are involved, they are also questions of law reviewed de novo.15 A district court magistrate‘s decision to bind over a defendant and a trial court‘s decision on a motion to quash an information are reviewed for an abuse of discretion.16
A. THE SEX OFFENDERS REGISTRATION ACT
SORA is a conviction-based registration statute that requires individuals convicted of certain “listed of-
fenses” to register as sex offenders.17 An offender‘s registration disclosure includes information regarding where the offender lives, identifying information, and a summary of the offender‘s convictions.18 Offenders are also required to sign a form acknowledging their obligations as sex offenders under SORA.19
The Legislature used broad language to describe SORA‘s scope and intent. SORA is intended 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.”20 The Legislature determined that convicted sex offenders - homeless or otherwise - pose a potential serious danger to the safety and morals of the people of Michigan and particularly to the state‘s children.21 SORA is therefore 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.”22 Consistent with this intent, SORA requires sex offenders to comply with a variety of statutory obligations, two of which are at issue here: (1) the quarterly reporting requirement of
All sex offenders convicted of one or more listed offenses that are felonies have an affirmative obligation
to report quarterly to a law enforcement agency for “verification of domicile or residence.”23 These offenders ”shall report in person” to the police between the first and fifteenth day of each January, April, July, and October.24 This quarterly reporting requirement is not contingent on where an offender resides or is domiciled, and all offenders who are not incarcerated must comply.
Additionally, all sex offenders have an ongoing obligation to keep law enforcement apprised of changes to their residence or domicile. Specifically, sex offenders ”shall notify the local law enforcement agency or sheriff‘s department having jurisdiction where his or her new residence or domicile is located or the department post of the individual‘s new residence or domicile within 10 days after the individual changes or vacates his or her residence [or] domicile . . . .”25 According to the statute‘s plain language, a sex offender‘s obligation to notify law enforcement of a new “residence” or “domicile” is triggered when the offender changes or vacates the previous “residence” or “domicile,”
After an offender complies with the quarterly reporting requirement pursuant to
28.725a(8) directs sex offenders to maintain either a valid driver‘s license or an official state identification card, either of which may be used as proof of an offender‘s residence or domicile for purposes of law enforcement verification. However, those are not the exclusive means by which an offender may prove residence or domicile to law enforcement. SORA expressly contemplates sex offenders with an uncommon residence or domicile by providing that Michigan State Police “may specify other satisfactory proof of domicile or residence.”27 Thus, if a sex offender is unable to provide any of the statutorily specified documents or the offender‘s residence or domicile is difficult to confirm, the Michigan State Police is empowered to formulate alternative methods whereby the offender may provide information to verify the offender‘s residence or domicile.
B. “RESIDENCE” AND “DOMICILE”
To comply with the statute‘s registration requirements, sex offenders must provide information regarding their “residence” or “domicile.”28 SORA defines “residence” for “registration and voting purposes” as
that place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging. If a person has more than 1 residence, or if a wife has a residence separate from that of the husband, that place at which the person resides the greater part of the time shall be his or her official residence for the purposes of this act.29
Thus, a person‘s “residence” under SORA is a combination of three things: that place where a person (1) habitually sleeps, (2) keeps personal effects, and (3) has a regular place of lodging.
The words that the Legislature used to define “residence” have a broad scope and contemplate a wide array of “residences.” However, the definition of “residence” does not include every location where a person might sleep, regardless of the length of the stay. A “residence,” for purposes of SORA, is only that place where an offender habitually sleeps and establishes regular lodging. The Court of Appeals panel in this case held that defendant was relieved of any obligation to comply with SORA because “the concepts of habitually and regularity are antithetical to the circumstances of homelessness,” because homeless people do not “have the security of a customary place of lodging” and do not live “within a home.”30
The Court of Appeals panel erroneously concluded that the homeless were definitionally incapable of having a habitual “residence.” This assumption is belied by the facts of this very case, in which the record shows that, at least for a time, defendant‘s “residence” was listed as the
Court of Appeals panel presumed that all homeless individuals sleep in a different location every night and can never have a regular place of lodging. Such a broad overgeneralization is unjustifiable and factually unsupported, even by the record in this case. It is entirely consistent with SORA for a sex offender to identify, for example, a vacant house or a park as a “residence” if it is, in fact, “that place at which” the sex offender “habitually sleeps, keeps his or her personal effects, and has a regular place of lodging.”
Unlike “residence,” “domicile” is not defined in SORA. Although this Court has, in several circumstances, treated the terms “residence” and “domicile” as synonymous,32 the terms were accorded different meanings under the common law.33 In SORA, the Legislature used both “residence” and “domicile” to describe what a sex offender can register. Therefore, construing the two terms as synonymous in this case would effectively render one of the terms nugatory - an outcome courts avoid when construing the language of a statute.34 Accordingly, it is necessary to differentiate between “residence” and “domicile” for purposes of SORA.
Michigan courts have defined “domicile” as ” ‘that place where a person has voluntarily fixed his abode not for a mere special or temporary purpose, but with a present intention of making it his home, either permanently or for an indefinite or unlimited length of time.’ ”35 Similarly, a domicile is “the place where a person has his home, with no present intention of removing, and to which he intends to return after going elsewhere for a longer or shorter time.”36 More significant to the instant case is that it has long been
Even if a homeless sex offender with transient sleeping arrangements cannot establish a “residence” as SORA defines it, the offender is still capable of reporting sufficient information regarding where the offender lives for purposes of identifying a “domicile.” Although
it may be difficult to verify where an offender is domiciled, as noted, difficulties in verifying an offender‘s information do not excuse the offender from complying with SORA‘s requirements. Moreover, SORA enables the Michigan State Police to respond to such situations by empowering it to “specify other satisfactory proof of domicile or residence.”40 Indeed, the Michigan State Police has exercised this statutory authority by promulgating an order that permits homeless sex offenders to register their domicile as “123 Homeless.”41 An offender thus satisfies the offender‘s statutory obligation by appearing at a law enforcement agency and advising the authorities of where the offender lives. Pursuant to SORA and the Michigan State Police order, the law enforcement agency can accept as “satisfactory proof” of the offender‘s “domicile” the state, city, zip code, and county in which the offender lives and must add that information to the “123 Homeless” designation in the registry. Thus, when the homeless sex offender‘s “domicile” is registered as “123 Homeless” in the city in which the offender lives, that is the offender‘s statutory domicile for purposes of SORA.42 Therefore, homelessness in no way prevents a sex offender from complying with the notification obligation pursu-
ant to
The Michigan State Police order does not contravene SORA, and the dissent‘s
The Court of Appeals panel did not address whether defendant had a domicile. Instead, the Court noted that “[d]omicile is not an issue in this case because the parties agree that as a homeless person, defendant has no ‘true, fixed, principal, and permanent home.’ ”44 Because this Court has long acknowledged that “[e]very person must have a domicile somewhere,”45 it was error for the panel below to conclude otherwise. Because the
determination of where an individual is domiciled is generally a question of fact,46 we cannot determine where defendant was domiciled and leave this question for resolution on remand. The offender‘s obligation is to truthfully inform police regarding where the offender‘s residence or domicile is located, and the police have the separate obligation of verifying that information.47
IV. APPLICATION
A. THE QUARTERLY REPORTING REQUIREMENT
Defendant argues that he is categorically excused from the statutory obligation because it is “impossible for homeless offenders to comply” with SORA, as homeless sex offenders conclusively lack either a “residence” or a “domicile.” Defendant also argues that prosecuting him for failing to comply with an impossible obligation violates his constitutional right to due process of law. We conclude that both arguments are unpersuasive.
Defendant has made no compelling claim that his homelessness rendered it impossible for him to comply with
Moreover, it applies regardless of the stability of where an offender resides or is domiciled. This absolute
Despite this clear mandate, there is no evidence suggesting that defendant ever complied with his obligation to report in person each January, April, July, and October, even during the time defendant‘s registered residence was at the VOA.49 In fact, the record shows that 16 quarters passed without defendant ever having complied with the quarterly reporting requirement. Defendant has never claimed that it was impossible for him to appear in person at a police station. Defendant‘s perceived difficulty, it seems, concerns the quality of information he contends he would have given to the police had he made an in-person appearance. However, any difficulty verifying the truthful information provided by defendant is the responsibility of law enforcement and does not negate defendant‘s responsibility to appear to report in the first instance. The lower courts erred by ignoring the mandatory nature of SORA‘s quarterly reporting requirement.
B. THE NOTIFICATION REQUIREMENT
When the police attempted to verify defendant‘s registration information in October 2006, the investigating officer determined that defendant no longer
received services at the VOA. Because defendant had registered his residence as the VOA in Lansing, and because defendant was no longer permitted to receive services there, his “residence” had been “vacate[d]” or “change[d].”50 From the date defendant no longer resided at the VOA, he had 10 days to notify the Lansing Police, the Ingham County Sheriff, or the local post of the Michigan State Police that his registered residence or domicile was no longer accurate. According to the record, after leaving the VOA, defendant never made any attempt to notify a law enforcement agency of the change. Even if defendant had difficulty in identifying his new residence or domicile, he was nevertheless obligated to notify the authorities that his residence or domicile had changed. Nothing in the text of SORA suggests that homelessness is an excuse for an offender‘s failure to comply with the act. Therefore, because it was certainly possible for defendant to notify law enforcement that he had changed his residence or domicile, and because defendant made no effort to do so, the lower courts erred by dismissing the charges.
We note further that there is no evidence in this case that defendant attempted to comply with his reporting or notification obligations and was prosecuted for failing to provide sufficiently specific information. In fact, the contrary is true. At defendant‘s preliminary examination, the following exchange occurred:
The Court: So you‘re telling me that [defendant] went [to the police station] and tried to report that he was homeless and they wouldn‘t take the report?
[Defense Counsel]: No, Your Honor, I‘m saying he does not have an obligation
to report anything if he doesn‘t have an address to report.
This case would be different if defendant had gone to a law enforcement agency, attempted to notify or report that he was a homeless sex offender, and was turned away and subsequently prosecuted. That did not occur here. Our holding that homeless offenders must comply with the statute‘s reporting and notification requirements, combined with the record evidence indicating that defendant made absolutely no effort to comply with either requirement, is sufficient to resolve the present case.
The dissent would permit a sex offender to escape any obligation to comply with SORA if the offender merely claims homelessness. The dissent argues that, as a matter of law, defendant could not comply with any of his obligations under SORA. The practical and egregious consequence of this conclusion is that if an offender unilaterally decides that he is homeless, that offender can simply ignore SORA and is no longer required to comply with
months immediately following the release of the Court of Appeals’ decision, the number of sex offenders claiming homelessness increased by 62 percent.54 As noted previously, the stated purpose of SORA is to enable law enforcement and the public to monitor sex offenders. Applying a “modicum of common sense,”55 it is difficult to imagine a conclusion that does more harm to this purpose than to enable the very people targeted by SORA to determine for themselves whether they must comply with the statute‘s requirements.56
V. CONCLUSION
By enacting SORA, the Legislature created a broad, comprehensive registration statute. The lower courts failed to give
ment agency and truthfully reporting to the authorities information regarding the offender‘s residence or domicile. It was clear legal error for the lower courts to excuse defendant‘s complete failure to comply with SORA. Therefore, because the Court of Appeals panel interpreted SORA in a manner contrary to the plainly expressed intent of the Legislature and because defendant made no effort to comply with his reporting obligations, we reverse the Court of Appeals’ judgment and remand defendant‘s case to the Ingham Circuit Court for proceedings consistent with this opinion.
MARKMAN, MARY BETH KELLY, and ZAHRA, JJ., concurred with YOUNG, C.J.
MARILYN KELLY, J. (dissenting). At issue in this case is whether defendant, a homeless person who is subject to the Sex Offenders Registration Act (SORA),1 violated the act when he failed to report a residence or domicile. The majority concludes that homelessness does not prevent compliance with SORA. Accordingly, it reverses the judgment of the Court of Appeals, which held that homeless individuals have neither a “residence” nor a “domicile” as those terms are used in SORA.2 For the
reasons I will detail, I believe the Court of Appeals properly held that, as a matter of law, defendant could not have complied with SORA‘s registration and reporting requirements. Accordingly, I dissent.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In 1984, defendant pled guilty of kidnapping, first-degree criminal sexual conduct (CSC I), and felony-firearm. Under the terms of his plea agreement, he was sentenced to a mandatory two-year term for the felony-firearm conviction, followed by concurrent 10- to 20-year terms for the kidnapping and CSC I convictions. The Court of Appeals affirmed the judgment.3
When defendant was released from prison in November 2002, he signed a form that set forth his reporting obligations under SORA. He provided “430 North Larch, Lansing, Michigan” as his address, which is the location of a homeless shelter operated by Volunteers of America (VOA). Apparently, defendant never resided at the VOA. Rather, as the senior manager for social services at the VOA testified, defendant was at the shelter only for meals. When the manager became aware that defendant had listed the VOA as his address
Law enforcement agencies often run verification tests to determine whether persons required to register and report under SORA have complied. In 2006, Lansing police performed such a test and learned that defendant had failed to report as required. An officer visited the VOA in an attempt to verify defendant‘s location, but was told that defendant had “moved out.”
Consequently, defendant was charged with five criminal counts alleging failure to comply with SORA. Notwithstanding that the complaint and an entry on a preliminary data sheet show defendant as “homeless” and with “no address,” the information lists his address as the VOA‘s Larch Street address. Following the preliminary examination, the Ingham Circuit Court bound him over on the charged offenses. Defendant then filed a motion to dismiss the charges, arguing that his homelessness rendered him incapable of complying with SORA‘s requirement that he report a “residence” to law enforcement. The trial court agreed with him and dismissed the charges. The Court of Appeals denied the prosecution‘s application for leave to appeal for lack of merit. But we remanded the case to the Court of Appeals for consideration as on leave granted.4
On remand, the Court of Appeals affirmed the trial court.5 It held that, because defendant had neither a residence nor a domicile at which to register, he could not comply with the reporting requirements of SORA.6 The Court of Appeals reasoned that the location where a nomadic homeless person spends the night does not fall within the ambit of SORA‘s definition of “residence.” The Court concluded that the Legislature had written SORA‘s reporting requirements for persons who have a domicile or residence. It urged legislators to consider changes to SORA to make it possible for the homeless to comply.
We granted the prosecution‘s application for leave to appeal.7
STANDARD OF REVIEW AND LEGAL BACKGROUND
Generally, a trial court‘s ruling on a motion to quash an information is reviewed for an abuse of discretion.8 However, the trial court‘s ruling in this case was based on its interpretation of SORA, which raises an issue of statutory interpretation. The proper interpretation of a statute presents a question of law, which we review de novo.9
It is not often that the Legislature expressly includes the purpose of an act in its provisions. Yet it did just that in writing SORA, providing in
The legislature declares that [SORA] 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.
When we interpret a statute, our goal is to give effect to the intent of the Legislature.10 The first step in ascertaining its intent is to consider the language of the statute itself. Generally, the words provide the most reliable evidence of the Legislature‘s intent, and, as far
as possible, we give separate meaning to every phrase, clause, and word.11
At issue in this case is the scope of SORA‘s provisions mandating registration and reporting. Specifically, defendant was charged with violating SORA by failing to notify law enforcement of a change in his residence or domicile. He was also charged with failure to comply with SORA‘s quarterly reporting requirements. Those requirements are set forth in
During most of the period in which defendant was charged with violating
Within 10 days after any of the following occur, an individual required to be registered under this act shall notify the local law enforcement agency or sheriff‘s department having jurisdiction where his or her new residence or domicile is located or the [state police] department post of the individual‘s new residence or domicile:
(a) The individual changes or vacates his or her residence, domicile, or place of work or education....12
[F]ollowing initial verification ... or registration..., an individual required to be registered under this act who is not incarcerated shall report in person to the local law enforcement agency or sheriff‘s department having jurisdiction where he or she is domiciled or resides or to the department post in or nearest to the county where he or she is domiciled or resides for verification of domicile or residence as follows:
*
*
*
(b) If the person is registered for 1 or more felony listed offenses, not earlier than the first day or later than the fifteenth day of each April, July, October, and January following initial verification or registration.
Thus, defendant‘s potential criminal liability under SORA hinges on whether he changed, or failed to quarterly report, a residence or domicile.
DEFENDANT DID NOT HAVE A “RESIDENCE” FOR PURPOSES OF SORA
The majority errs in its interpretation of SORA in numerous respects. First, it erroneously
Thus, to establish a “residence,” all three parts of the definition must be satisfied. As to the first, “habitual” is defined as “of the nature of a habit[.]”13 A “habit” is (1) “an acquired pattern of behavior that has become almost involuntary as a result of frequent repetition,” (2) “customary practice or use,” or (3) “a particular practice, custom, or usage[.]”14 The second and third parts are self-explanatory in that they require a “residence” to be a regular place of lodging where a person keeps his or her personal effects.
Defendant was unable to satisfy any part of the definition, let alone all three. When one applies the dictionary definitions of these terms and a modicum of common sense, it becomes obvious that defendant had
no “residence” as that term is used in SORA. He had no habitual place at which to sleep. He had no place at which he kept his personal effects. Nor did he have a regular place of lodging.
A park bench, highway underpass, or steam grate may qualify as a place where a homeless individual sleeps, but they hardly qualify as a “regular place of lodging” under the statute. As the Court of Appeals astutely observed,
the concepts of habitually and regularity are antithetical to the circumstances of homelessness. If there is anything “habitual” to the sleeping arrangements of the homeless, it is that it is customary for them not to have the security of a customary place of lodging. If there is anything “regular” about the place where a homeless person lives, it is that it is not within a home.15
The majority misinterprets this passage as equating a “residence” with a home. It does no such thing. The Court of Appeals merely pointed out that the homeless generally do not have a place at which they habitually sleep, keep their personal belongings, and customarily lodge. Hence, they often lack a “residence” under SORA.16 To the extent that these criteria are tradition-
The majority claims, ante at 383-384 n 31, that I would require only those offenders who live in a home, apartment, or homeless shelter to comply with SORA.” That is manifestly incorrect, as evidenced by my preceding analysis. Unlike the majority, I would apply
ally associated with a home, the Court of Appeals was simply applying the Legislature‘s chosen definition of “residence.”
The
sleeps, keeps his or her personal effects, and has a regular place of lodging.” (Emphasis added). Whether a “residence” is a “home, or, indeed, [a] structure at all,” ante at 384 n 31, is immaterial. And contrary to the majority‘s reading of my dissent, nothing I have written here stands for the proposition that, to be subject to SORA‘s requirements, an offender must live in a home or structure. I have simply applied the unabridged definition of “residence” as provided by the Legislature.
DEFENDANT DID NOT HAVE A “DOMICILE” FOR PURPOSES OF SORA
The majority next errs by perverting the legal definition and application of the term “domicile.” The word “domicile” is not defined in SORA. However, because “domicile” has acquired a peculiar meaning under the law, we should construe and apply the word according to that meaning.18
Numerous cases have discussed the concept of domicile. In fact, for more than 160 years, the Court has defined “domicile” as a person‘s “permanent home.”19 This definition is consistent with Black‘s Law Dictionary (9th ed), which defines “domicile” as “the place at which a person has been physically present and that the person regards as home; a person‘s true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.”
As the majority acknowledges, the terms “domicile” and “residence” have often been used interchangeably and synonymously.20 In Campbell v White, this Court approvingly quoted the following passage:
“Ordinarily one‘s residence and domicile (if they do not always mean the same thing) are in fact the same, and where they so concur they are that place which we all mean when we speak of one‘s home. And it may safely be asserted that where one has a home, as that term is ordinarily used and understood among men, and he habitually resorts to that place for comfort, rest and relaxation from the cares of business, and restoration to health, and there abides in the
peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.
intervals when business
does not call—that is his residence, both in the common and legal meaning of the term.”21
The majority trumpets the proposition that every person has a domicile. Under our centuries-old caselaw, that would be true only if every person had a permanent home. Unfortunately, that postulation is belied by reality, and, what is more important in the context of this case, SORA makes no such assumption. In support of its analysis, the majority selectively cites one sentence from Beecher v Common Council of Detroit22 for the proposition that every person has a domicile, while omitting the next sentence. In its entirety, the relevant portion of Beecher provides:
Every person must have a domicile somewhere. The domicile is acquired by the combination of residence and the intention to reside in a given place, and can be acquired in no other way. The residence which goes to constitute domicile need not be long in point of time. If the intention of permanently residing in a place exists, a residence in pursuance of that intention, however short, will establish a domicile.23
Hence, to establish a domicile, a person must first
establish a residence.24 Thus, the case the majority cites for the proposition that every person must have a domicile made the proposition contingent on the underlying assumption that the person first had a residence. And as previously discussed, given that defendant did not have a residence, then by definition he did not have a domicile as that word is used in SORA. Consequently, the majority‘s claim that defendant must have a domicile for purposes of SORA is legally unsupported.25
less” qualifies as a domicile. This conclusion is unsupported by the majority‘s cited (but not applied) definition of “domicile” as “the place where a person has his home, with no present intention of removing, and to which he intends to return after going elsewhere for a longer or shorter time.”26 As further explained later in this opinion, a fictitious address does not satisfy any definition of “domicile.” The majority opinion is devoid of a meaningful legal analysis with respect to defendant‘s domicile or lack thereof.
Even assuming, arguendo, that all persons do have a domicile, defendant still could not comply with SORA‘s registration and reporting requirements. The written form that each convicted sex offender must tender upon registration, Michigan State Police Form DD-004, requires the submission of general offender information (name, date of birth, height, weight, etc.), offense information (offense date, place of crime, conviction type, etc.), and address information.27 Under the address heading, a convicted sex offender is required to list a “Current Primary Address.” The form provides space for two address lines, an apartment or lot number, city, state, zip code, county, and a telephone number. The form also provides for the name of a penal institution if the offender is incarcerated.
Not only was defendant incapable of providing a current primary address pursuant to the form‘s instructions, but he was incapable of listing a residence or domicile. Those terms are absent from the form, which
also fails to instruct an offender how to register if he or she does not have a residence. And given that “residence” and “domicile” have often been considered synonymous in the eyes of the law, this Court cannot reasonably expect the homeless to discern a difference between them.28
The majority ignores this practical reality by stating that “difficulties in verifying an offender‘s information do not excuse the offender from complying with [SORA].”29 This distinguishes between verification of a “residence” or “domicile” and compliance
THE MICHIGAN STATE POLICE ORDER CONTRAVENES SORA
Defendant‘s lack of a “residence” or “domicile” aside, the majority relies on the fact that
empowers the Michigan State Police to “specify other satisfactory proof of domicile or residence” to facilitate compliance with SORA. In what was likely an attempt to remedy the problem of homeless sex offenders who lack a residence or domicile, the Michigan State Police issued an official order indicating that, “[i]f [an] offender is homeless, the generic address of ‘123 Homeless’ shall be entered into the computerized database, along with the offender‘s city, state, zip code, and county code.”31 The majority seizes on this order as proof that defendant could indeed have complied with SORA by telling police that he was homeless. In turn, the police could then have entered “123 Homeless” in the registry on his behalf. There are several critical flaws in this reasoning.
An agency order is unlawful if it is based on an erroneous interpretation of a statute.32 Although this Court accords due deference to an agency‘s interpretation of a statute, we grant no deference to an interpretation that contravenes the language of a statute.33 Furthermore, when interpreting statutes, we give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory.34 Under SORA, two provisions preclude the listing of 123 Homeless as an offender‘s address.
The first is
ing information concerning a registration, notice, or verification.” Without question, the generic address 123 Homeless would be a false and misleading address because that address does not exist in Michigan.35 Thus, listing 123 Homeless, which cannot be verified as an address, would violate
The second statutory provision that renders the Michigan State Police order unlawful is
However, to obtain a driver‘s license or state identification card, the Secretary of State requires an applicant to provide at least two documents “with [his or her] name and Michigan residence address.”36 Hence, by the Secretary of State‘s own requirements, an individual cannot obtain a state identification card absent a
valid residential address, which defendant did not have. Nor does the majority, the Michigan State Police, or the prosecutor indicate how a homeless sex offender like defendant could obtain an identification card without a permanent address, much less change an address to reflect transient accommodations.
This analysis is further supported by the Michigan State Police order—the very order flaunted by the majority as proof that defendant could have registered 123 Homeless as his address. The order provides:
The address on the [sex offender registry] record must match the address on the Michigan driver license or Personal Identification Card. If the address does not match, the member shall give the offender the opportunity to immediately visit the nearest Secretary of State branch office for the necessary address change and return to the post to verify their address before taking enforcement action.37
Thus, if an offender cannot verify his or her address upon registration, the order requires that the offender be directed to the Secretary of State for an identification card with a valid address. Why? Because
Applying
offender‘s identification card because a homeless person cannot obtain an identification card to comply with SORA. This Catch-22 highlights the facile nature of the majority‘s analysis. SORA does not permit registration using 123 Homeless. The majority is unable to refute this fact.
The majority speculates that the approach taken in my dissent would incentivize sex offenders who do have a home to report that they are homeless.38 It fails to
As indicated in
fender registry, which provides a comprehensive database of offenders’ addresses.39
But by validating the Michigan State Police order and effectively mandating that homeless sex offenders who do not have a residence or domicile register with 123 Homeless, the majority purges SORA of any meaning. As of today, any convicted sex offender who wishes to keep secret his or her whereabouts may be registered at the fictitious address 123 Homeless. Registration at this fictitious address is tantamount to, and in fact more misleading to the public than, an utter failure to register. Families with young children who visit the online sex offender registry will not be able to learn the whereabouts of these offenders. But they will be able to discern the consequences of this Court‘s approval of the registration of a fictitious address when they are left wondering where 123 Homeless is. Compliance for compliance‘s sake is worthless if it provides no valuable practical information.40 Thus, the majority‘s criticism of the consequences of this dissent applies with equal weight to its own opinion.41
The majority further errs by claiming, absent any authority, that “SORA ensures that [a] homeless sex offender is capable of providing sufficient information to comply with SORA‘s registration require-
In sum, because the Michigan State Police order contravenes the language of SORA, it is unlawful. The
majority‘s reliance on that order lacks a meaningful basis in the law and renders two provisions of the act utterly meaningless.
CONCLUSION
I dissent from the majority‘s decision to reverse the judgment of the Court of Appeals.
The majority construes my interpretation of SORA as rendering imperfect the tracking of homeless sex offenders. To the extent that it does so, my interpretation is steadfastly faithful to the language of SORA. The majority‘s is not. It defies SORA, the Michigan State Police order, and common sense.
CAVANAGH and HATHAWAY, JJ., concurred with MARILYN KELLY, J.
ments.” Ante at 386 n 42. The majority does not cite any statutory language in support of this naked assertion because there is no such language in the act.
Notes
All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a