Does et al v. SNYDER et al

Filing 103

OPINION AND ORDER Resolving Motions for Judgment. (granting in part and denying in part 96 and 97 ) Signed by District Judge Robert H. Cleland. (MBea)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOES #1-5 and MARY DOE,
Plaintiffs,
v.

Case No. 12-11194

RICHARD SNYDER and COL. KRISTE ETUE,
Defendants.
/
OPINION AND ORDER RESOLVING MOTIONS FOR JUDGMENT
Plaintiffs John Does #1-5 and Mary Doe bring the instant action against Governor
Richard Snyder and Director of the Michigan State Police Colonel Kriste Etue, named in
their official capacities, challenging Michigan’s Sex Offenders Registration Act
(“SORA”), as amended in 2011 and 2013. Both parties have filed Rule 52 motions for
judgment on the stipulated facts and records submitted by the parties. (See Dkt. ## 9095). Plaintiffs seek a declaratory judgment and permanent injunction, and ask the court
to grant judgment in their favor on Counts IV, V, VI, VII, and IX of their First Amended
Complaint. (Dkt. # 96, 5669-70.) Defendants move the court to find Plaintiffs’
challenges without merit and grant judgment in their favor. (Dkt. # 97, Pg. ID 5721.)
The parties have willingly waived their right to a full trial in their Rule 52 motions and
have stipulated that the court may enter judgment based on the record submitted by the
parties. For the reasons set forth below, Plaintiffs’ motion will be granted in part and
denied in part and Defendants’ motion will be granted in part and denied in part.

I. BACKGROUND
A. Statutory History
Michigan enacted SORA in 1994. 1994 Mich. Pub. Acts 295. The 1994 Act
established a confidential database containing information about sex offenders that was
available only to law enforcement. 94 Mich. Pub. Acts 295, § 10. SORA has been
amended numerous times. See 1996 Mich. Pub. Acts 494; 1999 Mich. Pub. Acts 85;
2002 Mich. Pub. Acts 542; 2004 Mich. Pub. Acts 238, 239, 240; 2005 Mich. Pub. Acts
121, 127, 132; 2006 Mich. Pub. Acts 46; 2011 Mich. Pub. Acts 17, 18; 2013 Mich. Pub.
Acts 149. As of April 1997, SORA requires law enforcement agencies to make certain
registration information available for public inspection, 1996 Mich. Pub. Acts 494,
§ 10(2), and following the 1999 amendments to SORA, registry information became
available through the Internet. See 1999 Mich. Pub. Acts 85, §§ 8(2), 10(2), and 10(3).
The amendments between 2002 and 2006, inter alia, increased reporting requirements
for registrants; introduced a one-time registration fee; removed the registration
requirement for certain individuals assigned to youthful trainee status; prohibited
registrants from working, residing, or loitering within 1,000 feet of a school; and created
a program whereby members of the public could be notified electronically when a sex
offender moved into a particular zip code. See generally 2002 Mich. Pub. Acts 542;
2004 Mich. Pub. Acts 238, 239, 240; 2005 Mich. Pub. Acts 121, 127, 132; 2006 Mich.
Pub. Acts 46.
The 2011 amendments significantly altered SORA to comply with the federal Sex
Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16901 et seq. In its
current form, SORA categorizes registrants into three tiers which determine the length
2

of time that individuals must register and the frequency with which they must report.
Mich. Comp. Laws §§ 28.722(r)-(w); 28.725(10)-(13). Tier classifications are based
solely on a registrant’s offense and do not factor in an individualized determination of
risk. Tier I offenders must register and comply with SORA obligations for fifteen years;
Tier II offenders must register and comply with SORA obligations for twenty-five years;
and Tier III offenders must register and comply with SORA for life. Mich. Comp. Laws
§§ 28.725(10)-(13). The most recent amendments became effective while this case
was pending and now require registrants to pay a pay a $50 annual registration fee.
2013 Mich. Pub. Acts 149.
B. Plaintiffs
All six Plaintiffs are Michigan residents who are Tier III offenders and thus
required by law to register as sex offenders and comply with SORA for life. (Dkt. # 90,
Pg. ID 3729.) Following are brief descriptions of Plaintiffs and their offenses.
In 1990, after losing his job at McDonald’s, Doe #1 attempted to rob his former
employer. (Id. at 3737.) During the robbery, Doe #1 forced the McDonald’s manager
and her fourteen-year-old son into the restaurant; when the manager did not open up
the safe, Doe #1 struck the manager and kicked her son. (Id.) The manager and her
son were able to escape. (Id.) Doe #1 was charged with eleven felony counts. He
pleaded no contest to kidnapping (for holding the fourteen-year-old child against his will)
and pleaded guilty to the other charges, including armed robbery. (Id.) In 1991, Doe #1
was sentenced to twenty-two to forty years in prison. (Id. at 3738.) He was paroled in
November 2009 and completed his parole in November 2011. (Id. at 3739.) Although
Doe #1’s criminal offense lacked an overtly sexual component, under the 2011
3

amendments to SORA, he is classified as a Tier III offender and is required to comply
with SORA for life because he was convicted of kidnapping a minor. (Id.) He has two
adult children and one toddler, and he co-parents his fiancée’s teenage daughter. (Id.)

Doe #2 pleaded guilty under the Holmes Youthful Trainee Act (“HYTA”), Mich.
Comp. Laws § 750.520d(1)(a), to criminal sexual conduct III after having a sexual
relationship with his fourteen-year-old “girlfriend” in 1996 when he was eighteen years
old. (Id. at 3741.) His plea was based on the prosecutor’s promise that his records
would be sealed. (Id. at 3743.) Under the HYTA, Doe #2 was assigned the status of
“youthful trainee” and sentenced to two years probation. (Id. at 3742.) After completing
his probation, his case was dismissed without conviction being entered pursuant to
Mich. Comp. Laws § 762.14(1). Designation as a “youthful trainee” is included in the
definition of “convicted” under SORA, Mich. Comp. Laws § 28.722(b). Doe #2 is
classified as a Tier III offender and must therefore comply with SORA for life. (Id. at
4745.) Doe #2 currently has a teenage daughter. The daughter’s mother has full
custody, and Doe #2 has weekend visitation rights. (Id. at 3747.)
In 1998, at the age of nineteen, Doe #3 had a sexual relationship with a fourteen
year old. (Id. at 3748.) Doe #3 pleaded guilty to attempted criminal sexual conduct and
was sentenced to four years of probation under the HYTA. (Id. at 3750.) During his
last year on probation, Doe #3 failed to timely register under SORA. (Id. at 3751.) His
HYTA status was revoked, and a conviction was entered. (Id.) Doe #3 has a nine-yearold son, a six-year-old son, and an infant son. (Id.) He was originally required to

4

register for a period of twenty-five years on a non-public registry, but was reclassified as
a Tier III offender in 2011. (Id. at 3750, 3752.)
Doe #4 pleaded guilty to attempted criminal sexual conduct III in 2006 after
having a sexual relationship with a female under the age of sixteen, who he met in a
nightclub restricted to those aged eighteen years and older. (Id. at 3752-53.) He was
twenty three years old at the time. (Id. at 2752.) Doe #4 was sentenced to five years
probation, which he completed. (Id. at 3753.) He is currently involved in a romantic
relationship with his victim, who is now over eighteen years old. They have a sevenyear-old daughter and an infant child, and Doe #4 has two other children as well. (Id. at
3754.) In 2011, Doe #4 was classified as a Tier III offender, extending his period of
registration from twenty-five years to life. (Id.)
Doe #5 was added to this action by a stipulated order entered on August 27,
2013. (Dkt. # 34.) In 1980, he was convicted of criminal sexual conduct III and
sentenced to two to fifteen years of imprisonment. (Dkt. # 90, Pg. ID 3757.) At the time
of the conduct, Doe #5 was twenty one years old and the victim was seventeen years
old. (Id.) The victim testifed at trial that the sexual conduct was nonconsenual, and
Doe #5 and his sister testifed that it was consensual. (Id.) Doe #5 served
approximately twenty-one months of his sentence. (Id.) He was not required to register
as a sex offender until 2011 after he pleaded guilty to larceny pursuant to SORA’s
“recapture” provisions, added by the 2011 amendments, which require registration for
eligible recidivists who are convicted of any additional felony after July 2011. See Mich.
Comp. Laws § 28.724(5). (Dkt. # 90, Pg. ID 375.) Doe #5 did not timely register and

5

was therefore cited for a probation violation and jailed for ninety days. (Id. at 3759.) He
has children and grandchildren. (Id. at 3761)
Ms. Doe was convicted in Ohio of one count of unlawful sexual conduct with a
minor in 2003 for having a sexual relationship with a fifteen-year-old male when she was
twenty-nine years old. (Id. at 3761-62.) She was sentenced to three years in prison,
but was granted judicial release after serving less than eight months of her sentence.
(Id. at 3763-65.) Ms. Doe was assigned to the lowest risk level of Ohio’s sex offender
registry, which required address verification once a year for ten years. (Id. at 3763-64.)
She moved to Michigan in 2004 after her judicial release. She was initially required to
register quarterly for twenty-five years, but was reclassified as a Tier III offender in
2011. (Id. at 3765-66.) Ms. Doe has a teenage daughter, step-children, and three
grandchildren under the age of ten, and she is expecting another grandchild. (Id.)
C. The Constitutional Challenges
Plaintiffs claim that the retroactive nature of SORA, its extensive reporting
requirements and prohibitions, and its broad application violate their constitutional
rights. Their First Amended Complaint seeks declaratory and injunctive relief enjoining
Defendants from enforcing certain provisions of SORA and barring the retroactive
application of the 2011 and 2013 amendments to Plaintiffs. (Dkt. # 46, Pg. ID 903-04,
911.) The complaint alleges nine counts: (1) violation of the Ex Post Facto Clause by
the retroactive application of the 2011 amendments (Count I); (2) violation of Plaintiffs’
fundamental rights to travel protected by the Due Process Clause (Count II); (3)
violation of Plaintiffs’ fundamental right to engage in common occupations of life
protected under the Due Process Clause (Count III); (4) violation of Plaintiffs’ right to
6

direct the education and upbringing of their children under the Due Process Clause
(Count IV); (5) violation of Plaintiffs’ right to free speech as protected by the First
Amendment incorporated through the Fourteenth Amendment (Count V); (6) violation of
the Due Process Clause because the Act is retroactive and “harsh or oppressive or []
violates principles of fundamental fairness” (Count VI); (7) violation of the Due Process
Clause because certain provisions are vague, impossible to comply with, or wrongly
impose strict liability (Count VII); (8) violation of the Headlee Amendment to the
Michigan Constitution which prohibits the state legislature from requiring local
governments to increase their level of participation in a state program unless the
increase is fully funded by the state (Count VIII); and (9) violation of the Ex Post Facto
Clause by the retroactive application of the 2013 amendments (Count IX). (Dkt. # 46,
Pg. ID 896-902, 910-11.)
Defendants filed a motion to dismiss Plaintiffs’ original complaint. The court
granted in part and denied in part the motion, dismissing with prejudice Counts I, II, and
III, dismissing with prejudice VI inasmuch as it applies to the retroactive application of
SORA to Does ##1 and 2, and dismissing without prejudice Count VIII. The motion was
denied with respect to Counts IV, V, and VII. It was denied with respect to Count VI
inasmuch as it applies to the retroactive extension the lifetime registration requirement
to Does ##3 and 4 and Ms. Doe. (Dkt. # 27, Pg. ID 703-04 (published at Does v.
Snyder, 932 F. Supp. 2d 803, 824 (E.D. Mich. 2013)). Count IX was added to the
Amended Complaint after the court entered its order disposing of Defendants’ motion to
dismiss.
II. STANDARD
7

Both parties have moved for a summary bench trial on the records submitted by
the parties, in the form of a joint statement of facts and accompanying exhibits (Dkt. ##
90-95). “[A] district court may decide a case by summary bench trial upon stipulation of
the parties as long as the parties have willingly foregone their right to a full trial.” AcuffRose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 142-43 (2d Cir. 1998); see May v.
Evansville-Vanderburgh Sch. Corp., 787 F.2d 1105, 1115-16 (7th Cir. 1986); Nielsen v.
W. Elec. Co., 603 F.2d 741, 743 (8th Cir. 1979); Starksy v. Williams, 512 F.2d 109, 11213 (9th Cir. 1975). Here, Plaintiffs and Defendants willingly waived their right to a full
trial in their motion papers and have requested that the court enter judgment based on
the record before it. (Dkt. ## 96, 97.) When reviewing Rule 52 motions, “the court does
not view the evidence in the light most favorable to the nonmoving party, as it would in
passing on a Rule 56 motion for summary judgment or a Rule 50(a) motion for judgment
as a matter of law; instead, it exercises its role as a factfinder.” United States v.
$242,484.00, 389 F.3d 1149, 1172 (11th Cir. 2004).
III. DISCUSSION
A. Count VII: Vagueness, Impossibility, and Strict Scrutiny
In Count VII, Plaintiffs claim SORA violates the Due Process Clause of the
Fourteenth Amendment because provisions of SORA are improperly vague, impossible
to comply with, and/or wrongly impose strict liability. In particular, Plaintiffs challenge
(1) the prohibition on working within a student safety zone, Mich. Comp. Laws
§§ 28.733-734; (2) the prohibition on loitering within a student safety zone, Mich. Comp.
Laws §§ 28.733-734; (3) the prohibition on residing within a student safety zone, Mich.
Comp. Laws §§ 28.733, 28.735; (4) the requirement to immediately report changes in
8

personal data, Mich. Comp. Laws § 28.725; (5) the requirement to report educational
information, Mich. Comp. Laws § 28.724a; and (6) the requirement to maintain a driver’s
license or state personal identification card with a current address, Mich. Comp. Laws §
28.725a(7). (Dkt. # 46, Pg. ID 900-01.)
1. Void for Vagueness
“It is a basic principle of due process that an enactment is void for vagueness if
its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108
(1972). The Supreme Court’s vagueness doctrine has two primary goals: (1) “to ensure
fair notice to the citizenry” and (2) “to provide standards for enforcement by the police,
judges, and juries.” Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1104 (6th Cir.
1995). In light of these goals, courts have developed a two-part test to determine if a
statute is unconstitutionally vague. First, the court must determine whether the law
gives a person “of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly.” Grayned, 408 U.S. at 108. In reviewing a
vagueness challenge, the court considers whether “ordinary people, exercising ordinary
common sense, can understand [a statutory prohibition] and avoid conduct which is
prohibited, without encouragement of arbitrary and discriminatory enforcement. United
States v. Salisbury, 983 F.2d 1369, 1378 (6th Cir. 1993). Second, the court must
evaluate whether the statute provides sufficiently “explicit standards for those who apply
them” or whether, due to a statute’s vagueness, it “impermissibly delegates basic policy
matters to policemen, judges, and juries for resolution on an ad hoc and subjective
basis.” Grayned, 408 U.S. at 108-09. “The standards of enforcement must be precise
enough to avoid ‘involving so many factors of varying effect that neither the person to
9

decide in advance nor the jury after the fact can safely and certainly judge the result.’”
Columbia Natural Res., 58 F.3d at 1105 (quoting Cline v. Frink Dairy Co., 274 U.S. 445,
465 (1927)).
“The degree of vagueness that the Constitution tolerates . . . depends in part on
the nature of the enactment.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 498 (1982). “The [Supreme] Court has expressed greater tolerance of
enactments with civil rather than criminal penalties . . . , recognized that a scienter
requirement may mitigate a law’s vagueness . . . , [and stated that] perhaps the most
important factor affecting the clarity that the Constitution demands of a law is whether it
threatens to inhibit the exercise of constitutionally protected rights.” Id. at 498-99. The
challenged provisions of SORA impose criminal sanction for non-compliance, Mich.
Comp. Laws §§ 28.729, 734(2), 735(2), make Plaintiffs strictly liable for failure to comply
with certain requirements and prohibitions, Mich. Comp. Laws §§ 28.725a, 729(2), 734735, and implicate Plaintiffs’ First Amendment right to free speech and their
fundamental right to participate in the education and upbringing of their children, see
infra Sections III.B and III.C. Accordingly, the court’s standard for vagueness will be
more exacting.
On the other hand, the rule of lenity reduces the risk of unfair notice and unclear
enforcement standards. “[A]s a sort of ‘junior version of the vagueness doctrine,’ the
canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by
so resolving ambiguity in a criminal statute as to apply it only to conduct clearly
covered.” United States v. Lanier, 520 U.S. 259, 266 (1997). Where possibly
ambiguous provisions of SORA are made clear when construed in light of the rule of
10

lenity, the vagueness doctrine would not void those provisions. Therefore, the court
applies the two-part test for vagueness with due consideration to SORA’s enhanced
need for definiteness and SORA’s reduced risk of vagueness.
It is unclear from Plaintiffs’ complaint whether their vagueness claim was
intended as a facial or as applied challenge. However, “it is well established that
vagueness challenges to statutes which do not involve First Amendment freedoms must
be examined in the light of the facts of the case at hand.” United States v. Krumrei, 258
F.3d 535, 537 (6th Cir. 2002) (quoting United States v. Powell, 423 U.S. 87, 92 (1975));
see also Chapman v. United States, 500 U.S. 453, 467 (1991) (“First Amendment
freedoms are not infringed by [the statute at issue], so the vagueness claim must be
evaluated as the statute is applied to the facts of this case.”); United States v. Kernell,
667 F.3d 746, 750 (6th Cir. 2012) (“For challenges to the statute that do not implicate
First Amendment concerns, the defendant bears the burden of establishing that the
statute is vague as applied to his particular case, not merely that the statute could be
construed as vague in some hypothetical situation.” (internal quotation marks and
citation omitted)). But see City of Chicago v. Morales, 527 U.S. 41, 55 (1999) (plurality)
(finding that a facial vagueness challenge was appropriate against “a criminal law that
contains no mens rea requirement and infringes on constitutionally protected rights”)
(citation omitted); Belle Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553, 557
(6th Cir. 1999) (“[E]ven in cases not involving First Amendment rights, we have
recognized that courts may engage in a facial analysis where the enactment imposes
criminal sanctions.”). Plaintiffs’ void for vagueness challenges only invoke the First
Amendment with regard to the Internet use reporting requirements. (See Dkt. # 46, Pg.
11

ID 900-01; Dkt. # 96, Pg. ID 5678-90; Dkt. # 99, Pg. ID 5816-23). With regard to all of
the other vagueness challenges, “[Plaintiffs] bear[] the burden of establishing that the
statute is vague as applied to this particular case, not merely that the statute could be
construed as vague in some hypothetical situation.” Krumrei, 258 F.3d at 537 (citing
United States v. Avant, 907 F.2d 623, 625 (6th Cir. 1990)). Nonetheless:
When contesting the constitutionality of a criminal statute, it is not necessary
that [the plaintiff] first expose himself to actual arrest or prosecution to be
entitled to challenge [the] statute that he claims deters the exercise of his
constitutional rights. When the plaintiff has alleged an intention to engage in
a course of conduct arguably affected with a constitutional interest, but
proscribed by a statute, and there exists a credible threat of prosecution
thereunder, he should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief.
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (internal
quotation marks and citations omitted). Thus, to the extent that Plaintiffs have curtailed
their conduct, because it is unclear whether such conduct violates SORA, the court
finds a constitutional vagueness challenge proper.

i. Geographic Exclusion Zones
Plaintiffs first challenge SORA’s geographic exclusion zones as void for
vagueness. SORA makes it a crime for a registrant to work, “loiter,” or reside “within a
“student safety zone.” Mich. Comp. Laws §§ 28.734(1)(a)-(b), 28.735(1). SORA
defines “school safety zone” as “the area that lies 1,000 feet or less from school
property.” Mich. Comp. Laws § 28.733(f). SORA defines “school property” to mean:
[A] building, facility, structure, or real property owned, leased, or otherwise
controlled by a school, other than a building, facility, structure, or real
12

property that is no longer in use on a permanent or continuous basis, to
which either of the following applies: (I) [i]t is used to impart education
instruction[, or] (ii) [i]t is for use by students not more than 19 years of age for
sports or other recreational activities.
Mich. Comp. Laws § 28.733(e).
Plaintiffs contend that the term “school safety zone” is unconstitutionally vague
because SORA provides insufficient guidance for how the 1,000 feet zones should be
measured. (Dkt. # 96, Pg. ID 5681-86.) Plaintiffs note that the zones are not physically
marked, and registrants are not provided with maps demarking the boundaries. Without
demarcation or maps, the typical registrants are unable to identify the zones because
they lack the software and data to map the zones, and Michigan has not provided a list
of school properties or parcel data to registrants or law enforcement. (Dkt. # 96, Pg. ID
5681-82.) Additionally, Plaintiffs argue that the term is vague because there is no
guidance as to whether the 1,000 feet distance should be measured “point to point” or
“property-line to property line” nor whether it should be measured “as the crow flies or
as people actually travel.” (Dkt. # 96, Pg. ID 5681-82.)
“Because plaintiffs cannot know where the zones are, they must ‘over-police’
themselves, erring on the side of caution.” (Id. at 5684.) For example, Doe #4's partner
testified that Doe #4 does not live with her and their two children because their house is
down the street from a school, and she was not sure if the school was within 1,000 feet
of her home. (Dkt. # 90, Pg. ID 3863.) Likewise, Doe #1, Doe #3, and Ms. Doe testified
that they had difficulties searching for new homes because they were unable to
accurately calculate the 1,000 feet distances. (Id. at 3831-42.) Ms. Doe testified that

13

she looked at properties farther than 1,000 feet from schools “so that I know that I’m
okay.” (Id. at 3842.)
While a prescribed distance may appear concrete on its face, without adequate
guidance about how to measure the distance, such provisions are suspectible to
vagueness concerns. For example, in Cunney v. Bd. of Trustees, 660 F.3d 612 (2d Cir.
2011), the Second Circuit considered whether a zoning ordinance that prohibited the
building of structures “over two stories tall or four and one-half feet above the easterly
side of River Road” was void for vagueness. Id. at 621. The court held that, while the
ordinance “affords a reasonable person adequate notice of what it generally prohibits
(e.g., three-story buildings will be in violation), it is remarkably unclear with respect to
how the four and a half foot limitation is defined.” Id. The ordinance did not specify
“from what adjacent elevation point on River Road the height of a building must be
measured . . . . Consequently, this shortcoming not only fails to give specific notice of
how a permit applicant should design his site plan so that the proposed building
complies with that restriction, but it also fails to provide an objective standard that
Village itself can apply . . . .” Id. Similarly, the geographic exclusion zone provisions in
SORA generally inform Plaintiffs that they may not reside, work, or loiter within 1,000
feet of a school zone, but, like the ordinance at issue in Cunney, SORA does not clarify
how to measure the 1,000 feet.
It is unclear whether SORA’s exclusion zones should be measured from only the
real property on which educational instruction, sports, or other recreational activities
take place—excluding the parking lot, administrative buildings, and other real property
used for other purposes—or whether the zone should be measured from the school
14

property line even when some of the real property is not used for one of the stated
purposes. An attorney with the Prosecuting Attorneys’ Association of Michigan testified
that prosecutors share “a pretty strong consensus that [the 1,000 feet distance] is
measured property line to property line.” (Dkt. # 90, Pg. ID 3830.) Even assuming that
this reflects SORA’s intended meaning, it nonetheless would be difficult for law
enforcement and registrants to parse through school-owned real property to determine
which is used for instruction, sports, or recreation, and which is not. However, the
prosecutors’ alleged consensus does not reflect a literal reading of SORA. A literal
reading of SORA would exclude from the definition of “school property” parking lots,
school administrative buildings, and other parts of a school’s real property where no
instruction, sports, or other recreational activcities occur. This literal, but arguably less
practical, reading of SORA is bolstered by the rule of lenity because it reads the
statute’s ambiguity in the registrants’ favor.
Assuming the 1,000 feet zones were measured from the property line, registrants
would still be unable to reasonably determine the boundaries of the exclusion zones,
resulting in the sort of “over-policing” described by Doe #4's partner. Michigan has not
provided registrants with a map of exclusion zones or a list of all school properties.
Defendants suggest that registrants can rely on Google maps (www.google.com/maps)
and phone books to determine if their potential address is within 1,000 feet of an
exclusion zone. (Dkt. # 97, Pg. ID 5767.) However, such tools do not eliminate many of
the sources of vagueness. First, neither Google maps nor phone books provide parcel
data or clearly mark property lines. Second, while Google maps can provide helpful
estimates as to distances between two properties, it would not provide a registrant with
15

the necessary detail to determine whether a property that is close to 1,000 feet away
from a school property line falls within an exclusion zone.
Furthermore, Defendants acknowledge that neither the Michigan State Police nor
current registrants have the necessary data to precisely determine the geographic
exclusion zones. Michigan is developing software called Offender Watch that reportedly
will provide law enforcement with a standardized guideline for determining exclusion
zones, but Offender Watch cannot currently conduct parcel to parcel measurements
because the State Police do not have the necessary data. (Dkt. # 90, Pg. ID 3831 (“The
[Michigan State Police’s Sex Offender Registration] Unit has tried but been unable to
obtain parcel data . . . .”).) Moreover, Offender Watch will not include all properties as
defined by SORA, but only “active schools according to the Michigan Department of
Education.” (Dkt. # 90, Pg. ID 3830-31.) Nothing in Defendants’ Rule 52 motion or the
Joint Statement of Facts suggests that law enforcement has the means to calculate the
exclusion zones if a court should determine that the 1,000 feet distance should be
measured from only the parts of a school’s real property used for instruction, sports, or
other recreational activities.
SORA does not provide sufficiently definite guidelines for registrants and law
enforcement to determine from where to measure the 1,000 feet distance used to
determine the exclusion zones, and neither the registrants nor law enforcement have
the necessary data to determine the zones even if there were a consensus about how
they should be measured. Accordingly, due to SORA’s vagueness, registrants are
forced to choose between limiting where they reside, work, and loiter to a greater extent
than is required by law or risk violating SORA.
16

ii. Loitering
Next, Plaintiffs contend that SORA’s prohibition against “loiter[ing]” within 1,000
feet of school property is unconstitutionally vague because the meaning of “loiter” is
“totally unclear.” (Dkt. # 96, Pg. ID 5686.) SORA defines “loiter” to mean “to remain for
a period of time and under circumstances that a reasonable person would determine is
for the primary purpose of observing or contacting minors.” Mich. Comp. Laws

§

28.733(b). Plaintiffs argue that it is unclear “whether they are permitted to attend
parent-teacher conferences, go to a school movie night, or take their children to a
school play-ground on the weekend.” (Dkt. # 96, Pg. ID 5687.) Defendants counter that
the term is clear, and describe Plaintiffs’ argument as “making some kind of ‘as-applied’
challenge without the statute actually having been applied in the manner they argue.”
(Dkt. # 97, Pg. ID 5770.) But Plaintiffs’ challenges are more than hypothetical. As
discussed above, they need not risk violating SORA in order to challenge the law;
Plaintiffs may challenge the definition of “loiter” to the extent that it has curtailed their
conduct. Cf. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).
SORA’s prohibition on loitering has curtailed Plaintiffs’ conduct. For example, in
order to avoid risking a SORA violation, Doe #3 does not “attend school activities like
movie nights, math nights, bingo nights, open house/meet the teacher, talent shows,
musicals, concerts or plays.” (Dkt. # 90, Pg. ID 3861.) Likewise, Doe #3’s wife
suggests that Doe #3 avoids “waiting for [her] children to come out of school and talk to
his niece or nephew or observe his own children walking down from school” for fear that
this conduct would violate the prohibition on loitering. (Dkt. # 90, Pg. ID 3853.) Thus,

17

the court construes the vagueness challenge against the definition of “loiter” as an as
applied challenge.
The definition of “loiter” contains two parts: (1) “remain[ing] for a period of time”
and (2) “under circumstances that a reasonable person would determine is for the
primary purpose of observing or contacting minors.” Mich. Comp. Laws § 28.733(b).
As this is an as applied challenge, the court will review the vagueness of this term as it
relates to the activities from which Plaintiffs claim to have refrained. First, “ordinary
people, exercising ordinary common sense can understand” the meaning of the phrase
“remain for a period of time.” States v. Salisbury, 983 F.2d 1369, 1378 (6th Cir. 1993).
Webster’s Third New International Dictionary 1919, 2394 (3d ed. 1981) defines “remain”
to mean “to stay in the same place or with the same person or group,” and it defines
“time” to mean “a period during which something (as an action, process, or condition)
exists or continues.” Whether or not the phrase “period of time” embodies a degree of
ambiguity by itself, the phrase “remain for a period of time” refers to staying in a school
zone for any duration. Driving one’s child to school and then immediately leaving the
school zone does not involve “remain[ing]” in the school zone for any period of time;
meanwhile, waiting at the school to pick up one’s child after school does involve
“remain[ing]” in the school zone for a period of time. Ordinary people using common
sense can deduce that, to “attend parent-teacher conferences, go to a school movie
night, or take their children to a school play-ground on the weekend” (Dkt. # 96, Pg. ID
5686-87), a registrant would need to “remain for a period of time” in a school zone.
Likewise, Doe #3’s abstention from waiting for his wife’s children after school and
observing his children walking from school is not the result of unconstitutional
18

vagueness in the phrase “remain for a period of time” because such activities fall within
the meaning of the phrase.
The second component of the definition of “loiter” raises a more difficult question.
In City of Chicago v. Morales, 527 U.S. 41 (1999), the Supreme Court considered
whether an ordinance prohibiting criminal street gang members from loitering was
unconstitutionally void for vagueness. A plurality of the court found that the definition of
the term “loiter” was ambiguous. The ordinance at issue in Morales defined “loiter” as
“to remain in any one place with no apparent purpose.” Id. at 56. The plurality
reasoned, “It is difficult to imagine how any citizen of the city of Chicago standing in a
public place with a group of people would know if he or she had an ‘apparent purpose.’”
Id. at 57.
Similarly, just as it would be difficult to determine if a Chicagoan were standing in
a place with no apparent purpose, in many circumstances, it would be difficult—perhaps
not as difficult, but difficult nonetheless—to determine if a Michigander were standing in
an exclusionary zone “apparently” for the specific, primary purpose of observing or
contacting minors. Conduct such as a registrant starting a conversation with a minor,
videotaping a minor, or standing on a playground by himself watching minors, would
likely fall within the definition of “loitering” with little room for a registrant to argue
ambiguity. However, it remains ambiguous whether a registrant may attend a school
movie night where he intends only to watch the screen, or a parent-teacher conference
where students may be present. The Morales plurality explained that “the purpose of
the fair notice requirement is to enable the ordinary citizen to conform his or her conduct
to the law [because] ‘[n]o one may be required at peril of life, liberty or property to
19

speculate as to the meaning of penal statutes.’” Id. (quoting Lanzetta v. New Jersey,
306 U.S. 451 (1939)). SORA’s present definition of “loiter” is sufficiently vague as to
prevent ordinary people using common sense from being able to determine whether
Plaintiffs are, in fact, prohibited from engaging in the conduct from which Plaintiffs have
refrained.
iii. Reporting Requirements
Plaintiffs also argue that SORA’s reporting requirements are unconstitutionally
vague. In particular, Plaintiffs challenge the requirement that a registrant must “report in
person and notify the registering authority . . . immediately after . . . the individual
purchases or begins to regularly operate any vehicle,” Mich. Comp. Laws
§ 28.725(1)(g), and the requirements that a registrant must report (1) “[a]ll telephone
numbers registered to the individual or routinely used by the individual,” (2) “[a]ll
electronic mail addresses and instant message addresses assigned to the individual or
routinely used by the individual,” and (3) “[t]he license plate number, registration
number, and description of any motor vehicle, aircraft, or vessel owned or regularly
operated by the individual and the location at which the motor vehicle, aircraft, or vessel
is habitually stored or kept.” Mich. Comp. Laws § 727(1)(h)-(j). Plaintiffs assert that the
terms “routinely used,” “regularly operated,” and “habitually stored and kept” are vague
and undefined. (Dkt. # 96, Pg. ID 5687-88.)
The requirements to report telephone numbers and e-mail and instant message
addresses implicate First Amendment free speech rights and are, therefore, subject to
facial vagueness challenges. The requirement to report vehicles does not implicate
First Amendment rights, but Plaintiffs adequately articulate how alleged vagueness in
20

the term “regularly operate” has caused certain Plaintiffs to choose between potentially
over-reporting information or risk violating SORA. For example, Doe #1’s employer
owns a fleet of vehicles, and Doe #1 testified that he is unsure whether he must report
all of the vehicles (and inform his employer that all of the vehicles have been reported)
because there is a chance he may drive any particular vehicle at some point. (Dkt.
# 90, Pg. ID 3933.) Likewise, Doe #2 drives his girlfriend’s car “once a quarter to go
register and maybe two or three other times in that period.” (Id.) Doe #2 does not know
if this constitutes “regular use” for the purposes of SORA. The court interprets the
record as setting forth a vagueness challenge to the vehicle reporting requirement as
applied to Does ##1 and 2. For the same reasons, Plaintiffs may also challenge the
telephone reporting provision as applied to Doe #4. Doe #4 is unsure whether he must
register his mother’s telephone number, which he uses “on occasion.” (Dkt. # 90, Pg.
ID 3936.) See Babbitt, 442 U.S. at 298 (internal quotation marks and citations omitted)
(“When the plaintiff has alleged an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by a statute, and there exists a
credible threat of prosecution thereunder, he should not be required to await and
undergo a criminal prosecution as the sole means of seeking relief.”). For both the as
applied challenges and facial challenges, the vagueness in these provisions renders
them constitutionally infirm for the reasons discussed below.1
SORA does not define “regularly” or “routinely” as used in §§ 28.725(1)(g) and
727(1)(h)-(j). “Unless they are otherwise defined, the words in a statute ‘will be

1

Plaintiffs have not alleged an as applied challenge to the phrase “habitually
stored and kept,” and the court will not consider a facial challenge to this phrase.
21

interpreted as taking their ordinary, contemporary, common meaning.’” Deutsche Bank
Nat’l Trust Co. v. Tucker, 621 F.3d 460, 463 (6th Cir. 2010) (quoting United States v.
Plavcak, 411 F.3d 655, 660 (6th Cir. 2005)). Webster’s Third New International
Dictionary 1913 (3d ed. 1981) defines “regularly” as “in a regular, orderly, lawful, or
methodical way,” and it defines “regular,” in relevant part, as “steady or uniform in
course, practice, or occurrence” and “returning, recurring, or received at stated, fixed, or
uniform intervals.” In the court’s March 18, 2014 Opinion and Order Granting in Part
and Denying in Part Defendants’ Amended Motion to Dismiss, the court denied
Defendants’ motion to dismiss as to Count VII, finding that a similar dictionary definition
of the term “regularly” does not “appear to provide an individual of ordinary intelligence
a reasonable opportunity to know when he or she must report their use of a vehicle.
Nor does the word ‘regularly,’ without some additional elaboration of its meaning,
constitute a precise enough standard so as to avoid arbitrary enforcement by the State.”
(Dkt. # 27, Pg. ID 699.) Regarding this second point, the court explained in its previous
order:
This second point is illustrated by the complaint’s averment that John Doe IV
was told by police officials that borrowing a car three times is the threshold
for regular operation. (See Compl. ¶ 31.) There is no explanation in either
the complaint or the attached exhibits, and Defendants offer none in their
briefing, of how police could have arrived at the conclusion that the borrowing
of a vehicle three times equals regular operation. If the individual police
officers arrived at this conclusion on their own, the reporting provision
certainly raises red flags. On the other hand, and only hypothetically, if
police based this three-event standard on some formal guidance published
by the State and made available to the public, the vagueness objection to §
28.725(1)(g) may be obviated. A more robust factual record is essential in
this regard. However, the court cannot dismiss Count VII simply because
Defendants contend that the challenged provisions have been in effect for
several years and Plaintiffs have allegedly satisfied the provisions.

22

(Dkt. # 27, Pg. ID 699-700.)
In their Rule 52 motion, Defendants reassert the same argument made in their
motion to dismiss that “none of the Plaintiffs expressed any doubt or uncertainty over
what ‘regularly’ means.” (Dkt. # 97, Pg. ID 5765.) Defendants also note that the phrase
“regularly operate” was introduced into SORA at the request of the ACLU (Id. at 5766);
however, this is inapposite to whether the is phrase is unconstitutionally vague. The
Joint Statement of Facts indicates that Plaintiffs and law enforcement are unsure as to
the meaning of the term “regularly” (Dkt. # 90, Pg. ID 3930-37), and nothing in
Defendants’ motion alleviates the court’s concern, expressed in its previous order, that
the term “regularly’ is vague under both parts of the vagueness test.
The term “routinely” implicates the same vagueness concerns as the term
“regularly.” Webster’s Third New International Dictionary 1981 (3d ed. 1981) defines
“routine” as, inter alia, “a standard practice,” “the habitual method of performance of
established procedures,” and “of a commonplace or repetitious character.” Both of
these terms indicate to registrants and police officers that some degree of normal
repetition is needed to be deemed to have regularly or routinely engaged in an activity.
But these terms are not sufficiently concrete (1) “to ensure fair notice to the citizenry” or
(2) “to provide standards for enforcement by the police, judges, and juries.” Columbia
Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1104 (6th Cir. 1995).
The court’s analysis of these terms is guided by Belle Maer Harbor v. Charter
Twp. of Harrison, 170 F.3d 553 (6th Cir. 1999). In Belle Maer Harbor, the Sixth Circuit
struck down an ordinance regulating “bubbling devices,” which “extract relatively warmer
water from the bottom of a waterway and bring that water to the surface, creating an
23

area of open water which otherwise would be covered by ice.” Id. at 555 n.2. The
ordinance provided in relevant part:
D. The amount of open water created by a bubbling system shall be
controlled as follows:
1. In canals one hundred ten (110') feet or less in width, a person choosing
to bubble shall operate, maintain and periodically inspect the bubbling system
apparatus so as to maintain an open water radius surrounding the bubbled
object not to exceed five (5') feet, or as determined by the inspecting officer
to be a reasonable radius.
Id. at 555 n.3.
The plaintiffs in Belle Maer Harbor challenged the ordinance as void for
vagueness, and the Sixth Circuit focused on whether the term “reasonable” “bound[ed]
the inspection officer’s enforcement decisions sufficiently to prevent ad hoc,
discriminatory enforcement of the open water restriction. Id. at 558. The court noted
that “a failure to define a term within a statute or ordinance does not render the statute
unconstitutionally vague, where the common meaning of the word provides both
adequate notice of the conduct prohibited and of the standards for enforcement.” Id.
The court concluded that “a commonly accepted meaning [did not] exist[] for the term
‘reasonable’ which would provide an inspection officer with guidance in interpreting the
Ordinance and in executing his or her enforcement duties with any uniformity.” Id. The
court found that the Black’s Law Dictionary definition of reasonable “demonstrates that a
standard grounded on reasonableness in this context is susceptible to a myriad of
interpretations conferring on the inspectors ‘a virtually unrestrained power to arrest and
charge persons with a violation.’” Id. (quoting Kolender, 461 U.S. at 360). Thus, the
court held that the ordinance was unconstitutionally vague because it entrusted the

24

enforcement of the ordinance “to the moment-to-moment judgment of the policeman on
his beat” and because “the court [could not] conclude that a person of ordinary
intelligence could determine from this standard the proscribed conduct.” Id. at 559.
Similar to the ordinance’s use of the word “reasonable” in Belle Maer Harbor, the
commonly accepted meaning of the terms “regularly” and “routinely” do not provide
sufficient guidance to law enforcement or registrants to survive a due process challenge
both generally and as applied to Plaintiffs. The frequency and consistency with which
Doe #1 must drive his employers’ vehicles in order to trigger the registration
requirement is unclear. Likewise, it is ambiguous whether Doe #2’s use of his
girlfriend’s car a few times a quarter constitutes regular use, particularly in light of the
rule of lenity, and a reasonable person and well-intentioned law enforcement officer
would struggle to determine whether Doe #4’s occasional use of his mother’s phone
was “routine.” The ambiguity in the reporting requirements is further highlighted by
officers’ and prosecutors’ responses to an informal telephonic survey questions
conducted by volunteers for Plaintiffs, law enforcement officers’ answers to deposition
questions, and law enforcement officers’ guidance to Plaintiffs.
Volunteers for Plaintiffs asked local law enforcement agencies and prosecutors’
offices how often a registrant could use a vehicle before triggering SORA’s reporting
requirements. “[S]ome respondents did not know the answer, and others provided
answers ranging from once or twice, to six or seven times, to ‘whatever is reasonable.’”
(Dkt. # 90, Pg. ID 3931.) When asked during a deposition whether a registrant who
used a vehicle once during a three-month period had to report the vehicle, the law

25

enforcement officer testified, “That would be probably a judgment call by the prosecutor
or the law enforcement agency.” (Dkt. # 60-8, Pg. ID 1853.) He answered in the
affirmative when asked if “each law enforcement agency might come to a different
conclusion about what regular use means.” (Id.) Furthermore, law enforcement told
Doe #4 that “if he borrows a car more than three times he must immediately report in
person,” but such use does not clearly trigger SORA’s reporting requirements. (Dkt. #
90, Pg. ID 3935.) Similarly, a local police department informed Ms. Doe that she had to
register a vehicle “if she was driving it or if it was parked in her driveway.” (Id. at 3936.)
The disparate views of the meaning of the term “regularly use” exemplify the lack
of a standardized guidelines for the enforcement of SORA’s reporting provisions. The
Belle Maer Harbor court emphasized, “although we do not require impossible clarity in
standards governing conduct, the court must apply a relative strict standard of scrutiny
here where criminal sanctions apply.” Belle Maer Harbor, 170 F.3d at 559 (citing
Kolender, 461 U.S. at 361). Here, SORA subjects registrants to criminal sanctions if
they do not comply with the registration requirements, but SORA’s vagueness leaves
law enforcement without adequate guidance to enforce the law and leaves registrants of
ordinary intelligence unable to determine when the reporting requirements are triggered.
iv. Additional Terms and Phrases Challenged by Plaintiffs
In Plaintiffs’ Response to Interrogatory 11, Plaintiffs challenge several additional
terms and phrases as unconstituionally vague, including, inter alia, the terms
“employee,” “immediately,” “residence,” “student,” and many others. (See Dkt. # 64-1,
Pg. ID 2137-42.) In addition to the other terms discussed in this Section, Plaintiffs’ Rule

26

52 Motion specifically identifies as vague the terms “immediate,” “employer,”
“temporarily reside,” and “designation used in Internet communications,” and it
incorporates the other terms listed in the Response to Interrogatory 11 by reference.
(Dkt. # 96, Pg. ID 5687-88.)
Plaintiffs may challenge SORA on vagueness grounds only as applied to
Plaintiffs unless the challenges implicate the First Amendment. As stated above, the
parties challenging the statutes “bear[] the burden of establishing that the statute is
vague as applied to [their] particular case, not merely that the statute could be
construed as vague in some hypothetical situation.” Kernell, 667 F.3d at 750. Plaintiffs
have not carried this burden for the majority of terms and phrases listed in their
Response; rather, their Motion asserts the sort of facial challenge that is reserved for
laws implicating First Amendment rights. Two terms or phrases identified by Plaintiffs
as vague implicate Plaintiffs’ First Amendment rights and are therefore subject to facial
challenges: the term “immediately” and the phrase “any other designations used in
internet communications or postings.” See infra Section III.C. Therefore, the court may
review Plaintiffs’ facial vagueness challenge of this term and phrase.
Section 28.725(1)(f) requires registrants to “report in person and notify the
registering authority . . . immediately after . . . [t]he individual establishes any electronic
mail or instant message address, or any other designations used in internet
communications or postings.” SORA defines “Immediately” to mean “within 3 business
days.” Mich. Comp. Laws § 28.722(g). This definition provides registrants with
adequate notice and law enforcement with adequate guidance as to the immediacy with

27

which Plaintiffs must report new Internet designations. Black’s Law Dictionary (10th ed.
2014) defines “business day” as “[a] day that most institutions are open for business,
usu[ally] a day on which banks and major stock exchanges are open, excluding
Saturdays, Sundays, and certain major holidays.” Courts regularly use the term
“business days” as defined in Black’s. E.g., Ohio v. Akron Ctr. for Reproductive Health,
497 U.S. 502 (1990) (distinguishing “business days” from “calendar days”). Plaintiffs
attempt to insert ambiguity into the term by suggesting that “it is unclear what ‘business
days’ means in the context of reporting to law enforcement authorities that provide
service seven days a week.” (Dkt. # 64-1, Pg. ID 2137.) But as evident in Black’s
definition, the term refers to days that most institutions are open for business and most
institutions are not open on weekends. SORA’s use of the term “immediately” is in no
way vague or ambiguous.
Likewise, the phrase “designation used in Internet communications or postings,”
when given the narrowing construction discussed below, is sufficiently clear to give fair
notice to registrants as to what information must be reported and adequate guidance to
law enforcement and the courts to provide standard enforcement of the law. See
Columbia Natural Res., 58 F.3d at 1104. It is an intrinsic aspect of language that every
word contains some degree of ambiguity. Cf. Johnson v. United States, 559 U.S. 133,
139 (2010) (Scalia, J.) (“[C]ontext determines meaning.”). “You’re bad!” can be an insult
or a particularly nice compliment; “this is Steven Spielberg’s last film” can mean that it is
the most recent one he directed or it could mean that it is the final film that he will ever
direct; and “Mark Twain” can refer to Samuel Langhorne Clemens, the author of The
Adventures of Tom Sawyer (1876), a crater on Mercury, or the nautical term for two
28

fathoms (twelve feet). In Green v. Block Laundry Mach. Co., 490 U.S. 504 (1989), the
Supreme Court explored the ambiguity in the word “defendant” as used in a former
version of Federal Rule of Evidence 609(a)(1):2
The word [“defendant”] might be interpreted to encompass all witnesses, civil
and criminal, parties or not. It might be read to connote any party offering a
witness, in which event Rule 609(a)(1)'s balance would apply to civil, as well
as criminal, cases. Finally, “defendant” may refer only to the defendant in a
criminal case.
Id. at 511 (citations omitted). The Court rejected “an interpretation [of the Rule] that
would deny a civil plaintiff the same right to impeach an adversary's testimony that it
grants to a civil defendant,” id. at 510, and held that Rule 609(a) “requires a judge to
permit impeachment of a civil witness with evidence of prior felony convictions
regardless of ensuant unfair prejudice to the witness or the party offering the testimony.”
Id. at 527. In a separate opinion, Justice Scalia—a strong advocate for giving statutes
their plain meaning, see INS v. Cardoza-Fonseca, 480 U.S. 421, 452-55 (1987) (Scalia,
J, concurring)—joined the majority in advocating interpreting the word “defendant”
against its literal meaning to avoid “produc[ing] an absurd, and perhaps unconstitutional,
result.” Green, 490 U.S. at 527 (Scalia, J., concurring); id. at 528-29 (“The word

2

In 1989, Rule 609(a) provided in relevant part:

General Rule. For the purpose of attacking the credibility of a witness,
evidence that the witness has been convicted of a crime shall be admitted if
elicited from the witness or established by public record during
cross-examination but only if the crime (1) was punishable by death or
imprisonment in excess of one year under the law under which the witness
was convicted, and the court determines that the probative value of admitting
this evidence outweighs its prejudicial effect to the defendant, or (2) involved
dishonesty or false statement, regardless of the punishment.
Green, 490 U.S. at 509.
29

‘defendant’ in Rule 609(a)(1) cannot rationally (or perhaps even constitutionally) mean
to provide the benefit of prejudice-weighing to civil defendants and not civil plaintiffs.
Since petitioner has not produced, and we have not ourselves discovered, even a
snippet of support for this absurd result, we may confidently assume that the word was
not used (as it normally would be) to refer to all defendants and only all defendants.”).
As with the seemingly unambiguous words “bad,” “last,” and “defendant,” the
phrase “any other designations used in internet communications or postings” includes
some degree of ambiguity. Webster’s Third New International Dictionary 612 (3d ed.
1981) defines “designation,” inter alia, to mean “distinguishing name.” Law enforcement
and registrants of ordinary intelligence would reasonably understand this phrase to
include Internet aliases used to convey and exchange information. See Webster’s
Third New International Dictionary 460 (3d ed. 1981) (defining “communicate” to mean
“to make known,” “inform a person of,” and “convey the knowledge or information of”);
Webster’s Third New International Dictionary 1771 (3d ed. 1981) (defining “post” to
mean “to affix . . . to a post, wall or other usual place for public notice); Post, MerriamWebster’s Online Dictionary http://www.merriam-webster.com/dictionary/post (last
visited Mar. 30, 2015) (defining “post” as “to publish (as a message) in an online forum
(as an electronic bulletin board)”).

While the phrase uncontroversially includes social media aliases and other
aliases used for the primary purpose of exchanging information with other Internet
users, there are many Internet aliases that individuals use that involve some degree of
Internet communication but do not clearly fall within SORA. Plaintiffs ask, “Must an
30

individual report when setting up a new on-line bank account, Amazon account, Mlive
account, gaming account, etc.?” (Dkt. # 64-1, Pg. ID 2139.) Through an alias created
for a massively multiplayer online role-playing game (“MMORPG”), a registrant would
likely engage in substantial communication with other individuals, including minors.
Through an Ebay account, a registrant might post items for sale, communicate bids, and
engage in private communications with sellers or buyers about the status of a
transaction. Individuals use online banking primarily to access their financial
information, pay bills, deposit funds, and engage in other economic activity, but these
accounts may also be used to communicate with bankers to facilitate such activities. In
the broadest sense, virtually all online accounts are Internet designations used for some
sort of communication.
In order to alleviate ambiguity and in light of the rule of lenity, the court interprets
SORA’s catch-all Internet designation phrase to apply to Internet designations that are
primarily used in Internet communications or postings. This construction is consistent
with a plain reading of the statute. “[U]nder the established interpretive canons of
noscitur a sociis and ejusdem generis, ‘[w]here general words follow specific words in
statutory enumeration, the general words are construed to embrace only objects similar
in nature to those objects enumerated by the preceding specific words.’” Wash. State
Dept. of Soc. and Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384
(2003) (quoting Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001)); see
Yates v. United States, 135 S. Ct. 1074, 1086-87 (2015) (plurality) (applying the canon
of ejusdem generis in holding that fish do not fall within the Sarbanes-Oxley Act of
2002's, 18 U.S.C. § 1519, prohibition against knowingly destroying “tangible object[s]”
31

because that term is limited to objects “used to record or preserve information”). “Any
other designation used in internet communications or postings” is a general phrase
which follows the more specific terms “electronic mail” and “instant message address” in
§ 28.725(1)(f). E-mail and instant message addresses are used primarily for the
purpose of communicating with other individuals online. Therefore, applying the canon
of ejusdem generis, the court construes “other designations used in internet
communications or postings” to refer only to designations used primarily for the
purposes of Internet communications or postings.
This construction excludes designations used primarily to engage in e-commerce
and online banking, or to read content like online newspaper accounts even though
registrants may post comments at the end of online newspaper articles or “chat” with
Amazon representatives. Meanwhile, a MMORPG alias is created for the primary
purpose of interacting with other online gamers and engaging in a substantial amount of
communications. Such aliases are “similar in nature” to e-mail and instant message
addresses and fall within the Internet designation provision.
This narrowing construction also has the virtue of being consistent with how law
enforcement is currently trained to enforce § 28.725(1)(f). The manager of Michigan’s
sex offender registry testified that Michigan State Police’s Sex Offender Registration
Unit trains law enforcement to record e-mail addresses and social media screen names,
but not online banking information. (Dkt. # 60-6, Pg. ID 1800.) The manager also
testified that online gaming screen names fall within SORA. (Id. at 1801.)
In sum, using this narrowing construction, § 28.725(1)(f) is sufficiently clear to
provide fair notice to registrants and adequate guidance to law enforcement.
32

2. Strict Liability
Plaintiffs further contend that SORA violates the Due Process Clause because it
imposes strict liability for many reporting and exclusion zone violations. (Dkt. # 46, Pg.
ID 900; Dkt. # 96, Pg. ID 5690-92.) Defendants do not address Plaintiffs’ strict liability
arguments in their responses to Plaintiffs’ Rule 52 Motion.
Similar to the void for vagueness doctrine, strict liability in the context of criminal
statutes raises concerns of fair notice. “[E]ven when a statute is specific about which
acts are criminal, [the] due process analysis is not complete. When . . . predicate acts
which result in criminal violations are commonly and ordinarily not criminal, [courts]
must ask the fair notice question once again.” United States v. Apollo Energies, Inc.,
611 F.3d 679, 687 (10th Cir. 2010). “It is . . . the general rule of law, and the dictate of
natural justice, that to constitute guilt there must be not only a wrongful act, but a
criminal intention.” Morissette v. United States, 342 U.S. 246, 274 (1952).
In Liparota v. United States, 471 U.S. 419 (1985) the Supreme Court held that, to
be convicted for violating a statute governing food stamp fraud, the government must
provide that the defendant knew that the acquisition or possession of food stamps was
in an unauthorized manner. Id. at 433. The Court explained that, for most criminal
statutes imposing strict liability, “Congress has rendered criminal a type of conduct that
a reasonable person should know is subject to stringent public regulation and may
seriously threaten the community’s health or safety;” meanwhile, the acquisition or
possession of food stamps is not so obviously against the public interest that a
reasonable person should be expected to know it is regulated. Id. Plaintiffs insist that
taking one’s children to a park near a school or failing to report a new e-mail account
33

are similarly not inherently blameworthy activities, and, therefore, the court should read
a knowledge requirement into SORA violations. The court agrees.
SORA imposes myriad restrictions and reporting requirements that affect many
aspects of registrants’ lives. Ambiguity in the Act, combined with the numerosity and
length of the Act’s provisions, make it difficult for a well-intentioned registrant to
understand all of his or her obligations. Moreover, law enforcement officers’ disparate
answers to survey and deposition questions about what SORA’s reporting requirements
and prohibitions highlight SORA’s imperfect ability to provide fair notice to all persons
who it covers. The frequency with which SORA is amended, as well as today’s highly
mobile population, make a knowledge requirement even more important to ensure due
process of law.
The court’s decision is guided by Lambert v. California, 355 U.S. 225 (1957), in
which the Supreme Court considered whether a Los Angeles ordinance making it
“unlawful for ‘any convicted person’ to be or remain in Los Angeles for a period of more
than five days without registering” and “requir[ing] any [convicted] person having a place
of abode outside the city to register if he comes into the city on five occasions or more
during a 30-day period.” Id. at 226. The particular question before the Court was
“whether a registration act of this character violates due process where it is applied to a
person who has no actual knowledge of his duty to register, and where no showing is
made of the probability of such knowledge.” Id. at 227. The Court added a knowledge
requirement to the ordinance and held that “[w]here a person did not know of the duty to
register and where there was no proof of the probability of such knowledge, he may not
be convicted consistently with due process. Id. at 229-30.
34

Recognizing a knowledge requirement in SORA does not defang the legislation.
Instead, it shifts responsibility to courts, law enforcement, and probation officers to
make sure persons convicted of sex offenses are informed of their legal obligations.
Such a sharing of responsibility is grounded in the text of SORA. SORA directs the
department of corrections to “mail a notice to each individual registered under [SORA]
who is not in a state correctional facility explaining the individual’s duties under this act
as amended.” Mich. Comp. Laws § 28.725a(1). The Act also directs the department of
corrections to “provide written notice to [an] individual [upon the individual’s release
from a state correctional facility] explaining his or her duties under [SORA] and the
procedure for registration, notification, and verification and payment of registration fee.”
Mich. Comp. Laws § 28.725a. SORA was not enacted to serve as a trap for individuals
who have committed sex offenses in the past (and who already have served their
sentences). Rather, the goal is public safety, and public safety would only be enhanced
by the government ensuring that registrants are aware of their obligations.
3. Impossibility
Plaintiffs also allege that “SORA . . . contains provisions with which compliance is
impossible,” rendering the Act in violation of the Due Process Clause. (Dkt. # 46, Pg. ID
900.) Their Rule 52 motion identifies two such provisions.
First, Plaintiffs contend that the requirement for registrants to report in person
makes compliance with SORA impossible because it may be infeasible for persons
subject to SORA who are ill or injured or facing an emergency to timely report in person.
(Dkt. # 96, Pg. ID 5692.) Were Plaintiffs’ reasoning applied to all legislation, no law that
imposes an affirmative duty on an individual to perform a task would be consistent with
35

due process of law because it would always be the case that some individuals could be
too infirm to perform the affirmative duty. If the court interprets Plaintiffs’ argument as
applying exclusively to laws involving strict liability, adopting such an argument would
still call into question the constitutionality of any strict liability statute or regulation
imposing a duty to act.
Plaintiffs’ impossibility argument raises a serious constitutional issue, but it is
unaccompanied by any allegations that persons have been penalized for failing to report
in person when required under SORA, due to illness, injury, or emergency. Plaintiffs
cite to an incident in 2001 when Doe #3 failed to comply with the quarterly in-person
reporting requirement because “Doe #3 came back from a vacation near the end of the
15-day registration period,” and “[t]he police station was closed from Friday, Saturday,
and Sunday for a long weekend.” (Dkt. # 90, Pg. ID 3750-51.) As a consequence of
Doe #3’s subsequent late reporting, he was found in violation of his probation, and his
HYTA status was revoked. (Id. at 3751.) This is not an incident in which a registrant’s
compliance with SORA was impossible. Defendants note that “it is not clear why Doe
#3 chose to return from vacation at that time, or if he made any effort to check the police
station’s availability before going on vacation, or if he attempted to go to any other
police agency to report once he learned that his local police station was closed.” (Id.)
Requiring an individual to slightly alter his vacation plans is a far cry from a due process
violation.
“It is the duty of federal courts to avoid the unnecessary decision of the
constitutional questions.” Tower Realty v. City of E. Detroit, 196 F.2d 710, 724 (6th
Cir.1952); see United States v. Elkins, 300 F.3d 638, 647 (6th Cir. 2002) (“Courts
36

should avoid unnecessary constitutional questions.”); Ashwander v. TVA, 297 U.S. 288,
347 (1936) (Brandeis, J., concurring) (“It is not the habit of the court to decide questions
of a constitutional nature unless absolutely necessary to a decision of the case.”
(citation omitted)). This principle of constitutional avoidance counsels against resolving
the question of whether SORA may penalize persons who fail to report in person due to
illness, injury or emergency where, as here, there is no indication that the law has ever
been enforced in such a manner. Furthermore, as will be discussed infra, the “in
person” reporting requirement places an unnecessarily burdensome obstacle that limits
protected First Amendment speech and, therefore, renders that provision
unconstitutional. Accordingly, the legislature will have cause to revisit SORA’s
requirement that registrants report in person. Under the circumstances, it is prudent for
the court to abstain from ruling on this issue.
Second, Plaintiffs argue that SORA violates the Due Process Clause because
Doe #4 “is automatically and unpreventably in violation” of SORA because “he is
homeless [and] cannot update his driver’s license to match his registration address
(which is ‘homeless’).” (Dkt. # 96, Pg. ID 5692.) Mich. Comp. Laws § 28.725a(7)
provides:
An individual required to be registered under this act shall maintain either a
valid operator’s or chauffeur's license issued under the Michigan vehicle
code, 1949 PA 300, MCL 257.1 to 257.923, or an official state personal
identification card issued under 1972 PA 222, MCL 28.291 to 28.300, with
the individual’s current address. The license or card may be used as proof
of domicile or residence under this section. In addition, the officer or
authorized employee may require the individual to produce another document
bearing his or her name and address, including, but not limited to, voter
registration or a utility or other bill. The department may specify other
satisfactory proof of domicile or residence.

37

A violation of § 28.725a(7) subjects an individual to “imprisonment for not more
than 2 years or a fine of not more than $2,000.00, or both.” Mich. Comp. Laws §
28.729(2). Plaintiffs do not allege that Doe #4 has been charged with violating SORA
due to his failure to update his driver’s license or identification card. However, the court
acknowledges that Doe #4 is left in the unenviable position of fearing that he may, at
any moment, be arrested and sentenced to imprisonment for violating SORA. Here,
there is a credible threat of prosecution, and Doe #4 need not wait until he faces
criminal prosecution to seek relief. See Babbitt, 442 U.S. at 298.
Absent from the record is information about if and how homeless persons may
obtain state identification cards. The Supreme Court of Michigan has held 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.” People v. Dowdy, 802 N.W.2d
239, 242 (Mich. 2011). While the majority in Dowdy noted that SORA directs registrants
to maintain a driver’s license or state identification card, it did not address whether it is
feasible for homeless registrants to obtain such identification. Id. at 245. To the
contrary, the majority implicitly acknowledges that homeless registrants may have
difficulty obtaining a driver’s license or state identification card by emphasizing that
“those are not the exclusive means by which an offender may prove residence or
domicile to law enforcement” and that, “if a sex offender is unable to provide any of the
statutorily specified documents . . . , the Michigan State Police is empowered to
formulate alternative methods . . . to verify the offender’s residence or domicile.” Id.

38

The Dowdy dissent insisted that § 28.725a(7)’s (then § 28.725a(8)) requirement
for registrants to maintain a driver’s license or state personal identification card with
their current address was unlawful because compliance is impossible for homeless
registrants. Justice Kelly, writing for herself and two other justices, explained:
[T]o 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. 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.
Id. at 259 (Kelly, J., dissenting) (footnote omitted).
In order for the court to determine whether SORA’s requirement for registrants to
maintain a driver’s license or state personal identification card is constitutional, as
applied to Doe #4 and other homeless registrants, the court needs additional briefing on
how and if homeless registrants can obtain such identification. The court will reserve
ruling on the constitutionality of this provision until the parties have submitted additional
briefing.
B. Count IV: The Fundamental Right to Participate in the Education and
Upbringing of Children
In Count IV, Plaintiffs claim that SORA’s geographic exclusion zones violate the
Due Process Clause of the Fourth Amendment because they (1) substantially interfere
with Plaintiffs’ ability to participate in the upbringing and education of their children, (2)
do not provide for individualized consideration before restricting this right, and (3) are
not narrowly tailored to serve a compelling state interest. (Dkt. # 46, Pg. ID 897-98.) In

39

particular, Plaintiffs first contend that SORA’s prohibition on loitering within 1,000 feet of
a school safety zone does allow registrants to contact or observe their own children
within the zones and thus prevent registrants from “observ[ing] or contact[ing their]
children in half the city.” (Dkt. # 96, Pg. ID 5694.) Second, Plaintiffs argue that, even if
the loitering ban does not apply to one’s own children, the ban nonetheless
unconstitutionally restricts parental rights because registrants cannot take their children
to locations within the school safety zones where other children are likely to be. (Dkt. #
96, Pg. ID 5694-95.)
Defendants argue that the loitering ban “does not implicate a fundamental right,
[and therefore] it need only rationally advance some legitimate government purpose.”
(Dkt. # 97, Pg. ID 5760.) They contend that this standard is met because the loitering
ban advances a state interest in protecting children. (Id.) Further, Defendants assert
that, [e]ven were the student safety zones established by SORA to implicate a
fundamental right, this claim still fails because the [loitering ban] is narrowly tailored to
advance the State’s compelling interest in protecting children.” (Id. at 5760-61.)
“The substantive component of the Due Process Clause protects ‘fundamental
rights’ that are so ‘implicit in the concept of ordered liberty’ that ‘neither liberty nor
justice would exist if they were sacrificed.’” Doe v. Mich. Dep’t of State Police, 490 F.3d
491 (6th Cir. 2007) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). The right
to “direct the education and upbringing of one’s children” is one such fundamental right.
Id. (quoting Washington v. Glucksberg, 521 U.S. 702, 720 (1997). “The government
cannot infringe on [a fundamental liberty interest] ‘unless the infringement is narrowly
tailored to serve a compelling state interest.’” Johnson v. City of Cincinnati, 310 F.3d
40

484, 502 (6th Cir. 2002) (quoting Glucksberg, 521 U.S. at 721). But where the law does
not infringe on a fundamental right, the court “analyze[s] its constitutionality under the
rational basis test,” Walker v. Bain, 257 F.3d 660, 667-68 (6th Cir. 2001), upholding the
law “so long as it bears a rational relation to some legitimate end.” Romer v. Evans,
517 U.S. 620, 631 (1996).
“[T]he interest of parents in the care, custody, and control of their children . . . is
perhaps the oldest of the fundamental liberty interests recognized by [the Supreme]
Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). The liberty interest includes a
parent’s right to “the companionship, care, custody and management of his or her
children.” Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981) (quoting Stanley v.
Illinois, 405 U.S. 645, 651 (1972)). However, “the Supreme Court has yet to articulate
the parameters of this right,” and the Sixth Circuit has recognized that the right “is
neither absolute nor unqualified” and “is limited by an equal[ly] compelling governmental
interest in the protection of children, particularly where the children need to be protected
from their own parents.” Kottmyer v. Maas, 436 F.3d 684, 690 (6th Cir. 2006).
In the court’s previous opinion granting in part and denying in part Defendants’
motion to dismiss, the court found that the loitering ban “appears to prevent Plaintiffs
from engaging in a plethora of activities closely related to the upbringing of their
children” and that Defendants failed to “demonstrate that the loitering prohibition is
actually narrowly tailored to the State’s interest and fails to explain why a less restrictive
prohibition . . . would not effectively achieve the State’s interest.” (Dkt. # 27, Pg. ID 69395.) The court informed the parties that “[f]actual development is warranted” in order for
the court to determine whether the loitering ban leaves Plaintiffs with sufficient
41

involvement in their children’s lives to warrant rational basis review and, if not, to
determine when the ban is narrowly tailored to achieve a compelling governmental
interest. (Id. at 695.)
Because of the geographical exclusion zones’ unconstitutional vagueness, the
court is ill-equipped to evaluate whether the loitering ban does in fact infringe on
parents’ rights to participate in the upbringing and education of their children.
Defendant contends that the loitering ban does not infringe on this right because “the
[geographic exclusion zone] provisions do[] not outright ban an offender’s presence on
school property.” (Dkt. # 97, Pg. ID 5756-57.) They note that registrants may drop off
and pick up their children, go to a public library, and attend a parent-teacher
conference. However, as previously discussed, ambiguity in the exclusion zones and in
the term “loiter” leave registrants of ordinary intelligence unable to determine what
behavior is prohibited by SORA. Due to SORA’s vagueness, it is unclear whether a
registrant may visit a public library or attend a parent-teacher conference where minors
are present without risking arrest from law enforcement. Furthermore, because it is
unclear how the geographic exclusion zones are measured, the court is unable to
determine the extent to which SORA infringes on a registrant’s ability to find a place to
live with his children and the extent to which SORA prevents a registrant from
accompanying his children to parks, playgrounds, movie theaters, restaurants, and
other establishments and places in the state. Defendants do not themselves provide
any viable means for determining how much of Michigan falls within the exclusion
zones, and SORA is too vague for the court, registrants, and law enforcement to make
this determination.
42

Defendants rely on Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) in which the
Eighth Circuit found that a statute prohibiting sex offenders from living within 2,000 feet
of a school did “not infringe upon a constitutional liberty interest relating to matters of
marriage and family in a fashion that require[d] heightened scrutiny.” Id. at 711. The
Eighth Circuit reached this conclusion on the ground that “the statute does not directly
regulate the family relationship or prevent any family member from residing with a sex
offender in a residence that is consistent with the statute.” Id. But a statute need not
directly regulate family relations in order to infringe on a person’s right to associate with
his family. In Johnson v. City of Cincinnati, 310 F.3d 484 (6th Cir. 2002), the Sixth
Circuit struck down as unconstitutional an ordinance that excluded individuals arrested,
taken into custody, or convicted of an enumerated drug offense from “drug-exclusion
zones” which were defined as “areas where the number or arrests for . . . drug-abuse
related crimes for the twelve (12) month period preceding the original designation is
significantly higher than that for other similarly situated/sized areas of the city.” Id. at
487-88. The Sixth Circuit held that the ordinance “plainly infringed on [a grandmother’s]
right to participate in the rearing of her grandchildren” because it “effectively banished”
her from the neighborhood in which her grandchildren resided “and precluded . . . her
regular role in caring for her grandchildren.” Id. at 505. Furthermore, at least one court
has held that a similar ordinance, which “prohibits registered sex offenders from residing
or loitering within 500 feet of any school, park, playground, recreation area, or day care
facility or within 25 feet of a school bus stop,” infringes on fundamental parental rights.
Elwell v. Township of Lower, 2006 WL 3797974, at *1 (N.J. Super. Ct. 2006). The
Elwell court concluded:
43

The geographical restrictions on where the plaintiff (or any other sex
offenders for that matter) may reside or “loiter,” substantially intrude upon
significant family matters involving private and personal choices about how
to raise and care for children, and decision-making about where to reside.
The Ordinance restricts Elwell, a low risk offender, from accompanying his
children to the school bus stop, going into a school or to a public park with his
children, for fear of being charged with “loitering” because he is a convicted
sex offender. The rights affected are significant, and are unnecessarily
burdened by the Ordinance.
Id. at *15.
It is well-settled that Michigan has a compelling interest in protecting minors from
violence and sexual abuse. (Dkt. # 90, Pg. ID 3767.) If the Michigan legislature
amends SORA to provide effective clarity to the loitering ban, perhaps the court could
find that the ban does not infringe on Plaintiffs’ associational rights and/or that the ban is
narrowly tailored to achieve a compelling state interest. However, SORA’s vagueness
leaves the court unable to determine to what extent SORA infringes on Plaintiffs’ right to
participate in the upbringing and education of their children, or whether SORA is
narrowly tailored to achieve that interest.
C. Count V: Violation of the First Amendment
In Count V, Plaintiffs allege that SORA’s “requirements to report information
about on-line accounts and activity is invalid under the First Amendment both on its face
and as applied because it is not narrowly tailored to serve a compelling state interest
and because it prohibits a substantial amount of protected speech.” (Dkt. # 46, Pg. ID
898.) Plaintiffs specifically challenge the constitutionality of two of SORA’s provisions,
Mich. Comp. Laws §§ 28.727(1)(I) and 28.726(1)(f). Section 28.727(1)(I) provides that
a registrant must report “[a]ll electronic mail addresses and instant message addresses
assigned to the individual or routinely used by the individual and all login names or other
44

identifiers used by the individual when using any electronic mail address or instant
messaging system.” Section 28.725(1)(f) requires registrants to “report in person and
notify the registering authority . . . immediately after . . . [t]he individual establishes any
electronic mail or instant message address, or any other designations used in internet
communications or postings.”
Defendants argue that the registration and reporting requirements do not prevent
Plaintiffs’ access to the Internet or regulate the content of their online speech. They
maintain that the requirements “no more regulate[] speech than does the collection of
other required information such as the offenders’ names, addresses, vehicle
identification, or employer data.” (Dkt. # 97, Pg. ID 5746.)
The court denied Defendants’ motion to dismiss as it related to Count V,
explaining that, “[w]ithout additional briefing and further information on the operation of
the provisions, the court is unable to determine whether the provisions implicate
registrants’ First Amendment rights.” (Dkt. # 27, Pg. ID 702.) The court expressed that
the contention that SORA chills registrants’ speech “deserves more considered
reflection” especially given that “at least one of the Plaintiffs refus[ed] to use the
internet” in light of the reporting requirements. (Id. at 701 quoting Compl. ¶ 204 (“ [John
Doe IV] does not use the Internet because he would be required . . . to register all email
and Internet identifiers, and would need to report constantly in order to use different
websites with different user-names.”).) Specifically, the court stated that “it is not at all
clear to the court how the provisions interact with registrants’ ability to use the internet
as a medium to engage in protected speech. Particularly of interest is what the State
does with the information provided.” Id. Furthermore, the court noted that “additional
45

information on the actual operation of the provisions is necessary to determine whether
they are narrowly tailored.” (Id. at 701-02.)
The First Amendment, as applied to the states through the Fourteenth
Amendment, protects individuals from laws abridging the freedom of their speech. U.S.
Const. amend. I. The Supreme Court has extended the First Amendment’s free speech
protections to the Internet. Reno v. ACLU, 521 U.S. 844, 870 (1997) (“[O]ur cases
provide no basis for qualifying the level of First Amendment scrutiny that should be
applied to [the Internet].”). Any law burdening the exercise of free speech “must be
narrowly drawn and represent a considered legislative judgment that a particular mode
of expression has to give way to other compelling needs of society.” Broadrick v .
Oklahoma, 413 U.S. 601, 611-12 (1973). “[T]he government may impose reasonable
restrictions on the time, place, or manner of protected speech,” provided the restrictions
are justified without reference to the content of the regulated speech, that they are
narrowly tailored to serve a significant governmental interest, and that they leave open
ample alternative channels for communication of the information.” Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989) (internal quotation marks omitted). The
Supreme Court clarified this standard, explaining:
A regulation of the time, place, or manner of protected speech must be
narrowly tailored to serve the government's legitimate, content-neutral
interests but that it need not be the least restrictive or least intrusive means
of doing so. Rather, the requirement of narrow tailoring is satisfied “so long
as the . . . regulation promotes a substantial government interest that would
be achieved less effectively absent the regulation.”
Id. at 798-99 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).
SORA’s Internet reporting provisions are content neutral in that they restrict

46

speech without reference to the [speech’s] content.” Doe v. Prosecutor, Marion County,
Indiana, 705 F.3d 694, 698 (2013); see Turner Broad. Sys., Inc. v. F.C.C., 512 U.S.
622, 643 (1994) (“As a general rule, laws that by their terms distinguish favored speech
from disfavored speech on the basis of the ideas or views expressed are content based.
By contrast, laws that confer benefits or impose burdens on speech without reference to
the ideas or views expressed are in most instances content neutral.” (citations omitted)).
Accordingly, applying the standard set forth in Ward, the court must determine whether
the restrictions are (1) narrowly tailored, (2) to serve a significant government interest,
while (3) leaving ample alternative channels for communicating information.
Both parties concede, and it is beyond cavil, that the state has a compelling
interest in protecting minors from violence and sexual abuse. (Dkt. # 90, Pg. ID 3767.)
The parties, however, vigorously dispute whether the Internet reporting provisions are
narrowly tailored to achieve this interest.
Plaintiffs contend that SORA’s Internet provisions are not narrowly tailored
because “they do nothing beyond what is accomplished by existing laws to protect
minors from sexual crime” and note that “those [minor solicitation] laws did a much
better job at narrowly targeting the behavior the state wanted to curtail” than SORA
does.3 (Dkt. # 96, Pg. ID 5698.) See Mich. Comp. Laws § 750.145d (prohibiting the

3

In arguing that SORA’s Internet provisions are not narrowly tailored, Plaintiffs
cite to Doe v. Prosecutor, Marion County, Indiana, 705 F.3d 694 (7th Cir. 2013). In that
case, the Seventh Circuit struck down an Indiana statute that prohibited most registered
sex offenders from using social networking websites, instant messaging services, and
chat programs. Id. at 695. The Seventh Circuit concluded that, although the statute
was content neutral, they were not narrowly tailored to serve the state’s interest
inasmuch as “[i]t broadly prohibits substantial protected speech rather than specifically
targeting the evil of improper communications to minors.” Id. However, the statute at
47

solicitation of minors over the Internet). However, SORA does go beyond the existing
laws and provides further protection of minors from sexual crimes in two ways. First,
whereas § 750.145d prohibits the online solicitation of minors, SORA’s Internet
provisions create a database of online identities of persons convicted of sex offenses
which makes easier the investigation of crimes in which a minor (or adult) has been
contacted through an online alias. Second, as the Department of Justice’s Office of Sex
Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART”)
aptly suggests, “knowledge that their Internet identifiers are known to the authorities
may deter registered sex offenders from engaging in criminal behavior on the Internet.”
(Dkt. # 90, Pg. ID 3877.) Plaintiffs note that law enforcement has yet to use the Sex
Offender Registration database to search for registrants’ Internet information to solve a
crime. (Dkt. # 96, Pg. ID 5698.) But this in no way affects whether SORA is narrowly
tailored to achieve the state’s significant and compelling interest in protecting minors.
Next, Plaintiffs attack SORA’s Internet provisions on the ground that they
unconstitutionally restrict Plaintiffs’ right to anonymous speech. (Dkt. # 96, Pg. ID 569899.) The Supreme Court has recognized that “an author’s decision to remain
anonymous, like other decisions concerning omissions or additions to the content of a
publication, is an aspect of the freedom of speech protected by the First Amendment.”
McIntyre v. Ohio Elections. Comm’n, 514 U.S. 334, 342 (1995). The First Amendment’s
protection of anonymous speech extends to the Internet as well. See, e.g., Doe v.

issue in Marion County is distinguishable from SORA. Whereas the Indiana statute
prohibited certain registrants from using social networking websites, SORA does not bar
any speech on the Internet, but rather imposes reporting requirements.
48

Harris, 772 F.3d 563, 574 (9th Cir. 2014); Doe v. Shurtleff, 628 F.3d 1217, 1222 (10th
Cir. 2010); Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001)
(“The right to speak anonymously extends to speech via the Internet.”). “[A]nonymity
may be motivated by fear of economic or official retaliation, by concern about social
ostracism, or merely by a desire to preserve as much of one's privacy as possible,”
McIntyre, 514 U.S. at 341-42, and the Ninth Circuit has suggested that anonymity may
be particularly important to sex offenders engaged in protected speech because it
“provides a way for a writer who may be personally unpopular to ensure that readers will
not prejudge her message simply because they do not like its proponent.” Harris, 772
F.3d at 581 (quoting McIntyre, 514 U.S. at 342).
Two recent circuit court opinions provide helpful guidance in addressing Plaintiffs’
argument. See Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010) and Doe v. Harris, 772
F.3d 563 (9th Cir. 2014). The court ultimately concludes that requiring Plaintiffs to
disclose their Internet designations to law enforcement does not unconstitutionally
infringe on their right to anonymous speech. However, the requirement that Plaintiffs’
report new designations in person as well as the Internet provisions’ aforementioned
vagueness render these provisions unconstitutionally overbroad.
In Shurtleff, the Tenth Circuit considered whether a Utah law requiring registered
sex offenders to report their “internet identifiers” violated the First Amendment. 628
F.3d 1217. In holding that the law did not violate registrants’ First Amendment rights,
the Tenth Circuit narrowly read the statute in order to dispel the registrant’s concerns
that the public would have access to his reported information and that law enforcement
would be unhindered from constant surveillance of his activities. To that end, the court
49

“read th[e] statute as permitting sharing only among law-enforcement agencies, not the
public at large, and only for [] recited law-enforcement purposes.” Id. at 1225.
Likewise, in explaining its holding “that the statute includes sufficient restrictions so as
not to unnecessarily chill [the registrant’s] speech,” the court read the statute “as only
allowing state actors to look beyond the anonymity surrounding a username in the
course of an investigation after a new crime has been committed.” Id. The Tenth
Circuit also noted that, “[a]lthough there is a possibility that a government agent would
have access to Doe's identity at the time he was speaking—as, for example, if an
undercover [officer] sought him out in a chat room in the course of investigating a sex
crime—we are not persuaded that this possibility imposes a constitutionally improper
burden on speech.” Id.
Meanwhile, in Doe v. Harris, 772 F.3d 563 (9th Cir. 2014), the Ninth Circuit
enjoined provisions of the Californians Against Sexual Exploitation Act, which required
sex offenders to report “[a] list of any and all Internet identifiers established or used by
the person” and “[a] list of any and all Internet service providers used by the person,” as
well as requiring registrants to send written notice to law enforcement within 24 hours of
any additions or changes to this information. Id at 567-68 (quoting Cal. Penal Code §§
290.014(b), 290.015(a)(4), (5)). Applying intermediate scrutiny, the Ninth Circuit
concluded that the Act “unnecessarily chills protected speech in at least three ways: the
Act does not make clear what sex offenders are required to report, there are insufficient
safeguards preventing the public release of the information sex offenders do report, and
the 24-hour reporting requirement is onerous and overbroad.” Id. at 578.

50

In particular, the Ninth Circuit found that “ambiguities in the statute may lead
registered sex offenders either to overreport their activity or underuse the Internet to
avoid the difficult questions in understanding what, precisely, they must report.” Id. at
579. “This uncertainty undermines the likelihood that the [Act] has been carefully
tailored to the [State’s] goal of protecting minors.” Id. (quoting Reno, 521 U.S. at 871.).
Second, the Ninth Circuit held that “the Act . . . chills anonymous speech because it too
freely allows law enforcement to disclose sex offenders’ Internet identifying information
to the public” because the Act provides that “any designated law enforcement entity
may provide information to the public about a person required to register as a sex
offender . . . when necessary to ensure the public safety based upon information
available to the entity concerning that specific person.” Id. at 580 (quoting Cal. Penal
Code § 290.45(1)(1)). The court noted that this provision “contains no standard for
judging what is ‘necessary to ensure the public safety,’” and that, “[w]ithout such
standard, the Act impermissibly ‘places unbridled discretion in the hands of a
government official or agency.’” Id. (quoting City of Lakewood v. Plain Dealer Publ’g
Co., 486 U.S. 750 (1988)). Thus, “registered sex offenders are unnecessarily deterred
from engaging in anonymous online speech.” Id. at 581. Third, the Ninth Circuit found
the twenty-four-hour update requirement to be a substantial and undeniable burden on
First Amendment activities, explaining that “anytime registrants want to communicate
with a new identifier, they must assess whether the message they intend to
communicate is worth the hassle of filling out a form, purchasing stamps, and locating a
post office or mailbox.” Id. at 582. The court further explained that “[t]he mail-in
requirement is not only psychologically chilling, but physically inconvenient, since
51

whenever a registered sex offender obtains a new ISP or Internet identifier, he must go
somewhere else within 24 hours to mail that information to the State.” Id.
While neither of these cases are controlling, they are instructive. Both courts
were concerned with who would have access to the reported information. In this regard,
SORA is more akin to the Utah legislation than the enjoined California statutes. Both
parties concede that “registrants’ internet identifiers are not made available to the
general public.” (Dkt. # 90, Pg. ID 3875.) SORA explicitly provides:
The following information shall not be made available on the public internet
website . . . (e) Any electronic mail addresses and instant message
addresses assigned to the individual or routinely used by the individual and
any login names or other identifiers used by the individual when using any
electronic mail address or instant messaging system.
Mich. Comp. Laws § 28.728(3).
Thus, SORA neither prohibits registrants from engaging in any particular speech
on the Internet, nor does it unmask registrants’ anonymity to the public. SORA does
unveil registrants’ anonymity to law enforcement; however, this does not, by itself,
infringe upon Plaintiffs’ First Amendment rights. In Laird v. Tatum, 408 U.S. 1 (1972)
the Supreme Court noted:
In recent years this Court has found in a number of cases that constitutional
violations may arise from the deterrent, or ‘chilling,’ effect of governmental
regulations that fall short of a direct prohibition against the exercise of First
Amendment rights. In none of these cases, however, did the chilling effect
arise merely from the individual's knowledge that a governmental agency was
engaged in certain activities or from the individual's concomitant fear that,
armed with the fruits of those activities, the agency might in the future take
some other and addition[a]l action detrimental to that individual. Rather, in
each of these cases, the challenged exercise of governmental power was
regulatory, proscriptive, or compulsory in nature, and the complainant was
either presently or prospectively subject to the regulations, proscriptions, or
compulsions that he was challenging.

52

Id. at 11.
The Sixth Circuit has construed Laird to stand for the proposition that, “to allege a
sufficient injury under the First Amendment, a plaintiff must establish that he or she is
regulated, constrained, or compelled directly by the government's actions, instead of by
his or her own subjective chill.” ACLU v. Nat’l Sec. Agency, 493 F.3d 644 (6th Cir.
2007). Here, given that registrants’ anonymity remains intact with regard to the public,
any chilling effect caused by the limited removal of Plaintiffs’ anonymity would be
caused by the sort of subjective fear of future government action discounted in Laird.
However, there are two aspects of SORA’s Internet reporting provisions that are
particularly onerous on registrants and render the Internet reporting requirements
unconstitutionally burdensome. First, just as ambiguity in the California statute
contributed to its chilling effect on speech, so too does the ambiguity in SORA’s Internet
reporting provisions discussed above. Ambiguity as to the meaning of “routinely used”
would likely result in both overreporting and under use of permissible speech activities.
It is uncertain whether a registrant would need to register her husband’s email account
were she to occasionally respond to emails from his address. For example, if the
registrant were to send holiday emails from her husband’s account in December, pay a
bill using his email account in March, and then share photos with a family member from
his email account in May, she would be left to determine whether such use was
“routine.” Reasonable persons could either avoid using another person’s email account
or report the account out of a sense of caution even though this usage may not appear
to fall within the dictionary definition of routine. See supra Section III.A.1.iii. As with the
California law, “[t]his uncertainty undermines the likelihood that the [Act] has been
53

carefully tailored to the [State's] goal of protecting minors.” Harris, 772 F.3d at 579
(quoting Reno, 521 U.S. at 871).
More problematic is § 28.725(1)’s requirement that registrants report “in person”
immediately (i.e., within three business days) whenever they establish “any electronic
mail or instant message address, or any other designation used in internet
communications or postings.” Mich. Comp. Laws § 28.725(1)(f). The requirement to
report in person is surely more burdensome to registrants than the California law’s
requirement to report new Internet identifiers by mail within twenty-four hours. In
concluding that the “24-hour reporting requirement . . . undoubtedly chills First
Amendment Activity,” the Ninth Circuit explained:
[A]nytime registrants want to communicate with a new identifier, they must
assess whether the message they intend to communicate is worth the hassle
of filling out a form, purchasing stamps, and locating a post office or mailbox.
The mail-in requirement is not only psychologically chilling, but physically
inconvenient, since whenever a registered sex offender obtains a new ISP
or Internet identifier, he must go somewhere else within 24 hours to mail that
information to the State.
Harris at 581-82.
This court need not—and does not—agree that putting a stamp on an envelope
and walking it to one’s front door or roadside mailbox constitutes a notable “hassle,” let
alone one that “undoubtedly chills” a person’s ability to freely speak. It remains,
however, that SORA’s “in person” reporting requirement imposes a substantially
greater, and apparently unnecessary, burden on protected First Amendment speech.
Accordingly, while SORA’s Internet reporting provisions serve the significant
governmental interest of protecting minors and investigating sexual crimes, the

54

ambiguity in the reporting requirements and the requirement to report “in person” render
the provisions not narrowly tailored and, therefore, unconstitutional.
D. Count VI: Retroactive Application of Lifetime Registration Requirement
Plaintiffs claim that the 2011 SORA amendments’ imposition of retroactive
lifetime registration violates the Due Process Clause of the Fourteenth Amendment.
(Dkt. # 46, Pg. ID 898-99; see Dkt. # 96, Pg. ID 5699-700 (“The due process question
before this Court is not whether myriad amendments to SORA over the last 20 years
can be applied retroactively, but rather whether one particular change—the imposition
of retroactive lifetime registration—violates due process.”).) In their complaint, Plaintiffs
specifically identify three manners in which the lifetime registration amendment
contravenes the Due Process Clause: (1) the application of SORA to Doe #1 who was
not required to register as a sex offender upon his conviction for kidnapping in 1990; (2)
the application of SORA to Doe #2 who pleaded guilty in 1997 under the HYTA with the
expectation that his case would be dismissed and his records sealed; and (3) the 2011
amendment’s retroactive extension of Doe #3’s, Doe #4’s, and Ms. Doe’s registration
periods from twenty-five years to life “without any individualized showing that such an
extension is warranted.” (Dkt. # 46, Pg. ID 898-99.)
The court held in its previous opinion that, “as a matter of law . . . , retroactively
applying SORA to [Does ##1 and 2] is justified by a legitimate legislative purpose” and
dismissed Count VI as it relates to the retroactive application of SORA to those
Plaintiffs. (Dkt. # 27, Pg. ID 696.) However, the court found that, “at this early stage of
the litigation, the court is unable to determine whether retroactively extending the
registration period of Plaintiffs from twenty-five years to life is justified by a legitimate
55

legislative purpose” and, accordingly, denied “Defendants’ motion as it applies to the
extension of Plaintiffs’ registration periods.” (Id. at 697.) The court now considers this
issue and concludes that the retroactive application of SORA’s lifetime registration
requirement is constitutional.
1. Level of Scrutiny
Generally, “[r]etroactivity is not favored in the law.” Bowen v. Georgetown Univ.
Hosp., 488 U.S. 204, 208 (1988). As the Supreme Court explained in Landsgraf v. USI
Film Prods., 511 U.S. 244 (1994), “[t]he Due Process Clause . . . protects the interests
in fair notice and repose that may be compromised by retroactive legislation; a
justification sufficient to validate a statute's prospective application under the Clause
‘may not suffice’ to warrant its retroactive application.” Id. at 266. Yet, “[i]n general, due
process is satisfied ‘simply by showing that the retroactive application of the legislation
is itself justified by a rational legislative purpose.’” Franklin Cnty. Convention Facilities
Auth. v. Am. Premier Underwriters, Inc., 240 F.3d 534, 550 (6th Cir. 2001) (quoting
Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 730 (1984)).
Whereas Franklin County involves an act that “adjust[s] the burdens and benefits
of economic life,” id., Plaintiffs argue that the court should apply strict scrutiny rather
than rational basis review because SORA burdens fundamental rights—namely
Plaintiffs’ fundamental right to parenting and free speech rights. (Dkt. # 96, Pg. ID
5701.)
It is well settled that “[g]overnment actions that burden the exercise of . . .
fundamental rights or liberty interests are subject to strict scrutiny, and will be upheld
only when they are narrowly tailored to a compelling governmental interest.” Seal v.
56

Morgan, 229 F.3d 567, 574 (6th Cir. 2007). Defendants cite to no controlling precedent
in which a court applied a heightened level of scrutiny for a law’s prospective application
but then applied rational basis review to a law’s retrospective application.4 Instead,
Defendants rely solely on the doctrine of the law of the case to argue that the court is
obligated to apply rational basis review in determining whether the retroactive
application of SORA’s lifetime registration violates due process. (Dkt. # 100, Pg. ID
5846 (citing Christianson v. Colts Indus. Operating Corp., 486 U.S. 800, 815-16 (1988)
(“[T]he doctrine [of the law of the case] posits that when a court decides upon a rule of
law, that decision should continue to govern the same issues in subsequent stages in
the same case.” (citation omitted))).)
The court has not previously decided whether a heightened level of scrutiny or
rational basis review applies to the determination of whether the 2011 Amendments’
retroactive extension of Doe #3’s, Doe #4’s, and Ms. Doe’s registration periods from
twenty-five years to life violates the Due Process Clause. In denying Defendants’
motion to dismiss as to this claim, the court found that, “at this early stage of litigation,
the court is unable to determine whether retroactively extending the registration period
of Plaintiffs from twenty-five years to life is justified by a legitimate legislative purposes.”
(Dkt. # 27, Pg. ID 697.) The court did not need to consider whether a heightened level
of scrutiny applied because it found that the motion to dismiss standard was not met

4

The District of Nebraska rejected a due process challenge to the retroactive
application of Nebraska’s sex offender registration laws holding that retroactive
application of the laws “is itself justified by a rational legislative purpose,” being public
safety. Doe v. Nebraska, 734 F. Supp. 2d 882, 932 (D. Neb. 2010). But that court did
not consider whether a heightened level of scrutiny was warranted for this
determination.
57

even applying rational basis review and because the parties did not litigate the proper
standard of review. While it is true that the court granted the motion as to the
retroactive application of SORA to Does ##1 and 2 on the ground that such application
“is justified by a legitimate legislative purpose,” (Dkt. # 27, Pg. ID 696), this ruling is
separate from the court’s analysis of the retroactive application to the other Plaintiffs, as
evidenced by the court’s disparate dispositions of the claim as applied to Does ##1 and
2 and the other Plaintiffs. Moreover, in recognizing the doctrine of the law of the case,
the Supreme Court made clear that, despite this doctrine, “[a] court has the power to
revisit prior decisions of its own or of a coordinate court in any circumstance.”
Christianson, 486 U.S. at 817. Even if the doctrine applied here, in light of the fact that
the standard of review was not litigated during the motion to dismiss phase, the court
would find it appropriate to consider in the first instance whether a higher level of
scrutiny was warranted.
As discussed above, SORA’s Internet reporting requirements implicate Plaintiffs’
First Amendment free speech right rights and, due to SORA’s vagueness, the court is
unable to determine whether the prohibition against loitering and residing in the
geographical exclusion zones infringe on a Plaintiffs’ fundamental right to participate in
the upbringing and education of their children. For the reasons discussed in Sections
III.B and III.C, the court will enjoin the geographic exclusion zone provisions and the
majority of the Internet reporting provisions. The court, however, will not enjoin Mich.
Comp. Laws § 28.727(1)(f) inasmuch as it requires registrants to report “[a]ll electronic
mail addresses and instant message addresses assigned to the individual . . . and all
login names or other identifiers used by the individual when using any electronic mail
58

address or instant messaging system.” The retroactive application of the lifetime
registration requirement implicates the First Amendment only to the extent that it
incorporates this reporting requirement—thus retroactively extending the length of time
that certain individuals must report their e-mail addresses, instant message addresses,
and related information. The court will apply intermediate scrutiny in considering the
lifetime registration requirement’s incorporation of this reporting requirement. In all
other respects, the retroactive application of the lifetime registration requirement does
not implicate Plaintiffs’ First Amendment rights or right to participate in the upbringing
and education of their children.
Plaintiffs also contend that the retroactive application of SORA’s lifetime
registration should be subject to higher scrutiny because it alters the terms of plea
agreements. (Dkt. # 96, Pg. ID 5701-02 (citing Lynch v. United States, 292 U.S. 571,
579 (1934)).) Under this theory, plea agreements are government contracts, and
breaches of governmental contracts implicate the Fifth Amendment’s Takings Clause.
See Lynch, 292 U.S. at 579 (“Valid contracts are property, whether the obligor be a
private individual, a municipality, a state, or the United States. Rights against the
United States arising out of a contract with it are protected by the Fifth Amendment.”).
“Plea agreements are contractual in nature.” United States v. Robinson, 924
F.2d 612, 613 (6th Cir. 1991); see Puckett v. United States, 556 U.S. 129, 137 (2009)
(“Although the analogy may not hold in all respects, plea bargains are essentially
contracts.”). “Plea agreements involve a quid pro quo between a criminal defendant
and the government. In exchange for some perceived benefit, defendants waive
several of their constitutional rights (including the right to a trial) and grant the
59

government numerous tangible benefits, such as promptly imposed punishment without
the expenditure of prosecutorial resources.” INS v. St. Cyr, 533 U.S. 289, 321 (2001)
(internal quotation marks and citations omitted). “When a defendant agrees to a plea
bargain, the Government takes on certain obligations. If those obligations are not met,
the defendant is entitled to seek a remedy.” Puckett, 556 U.S. at 137.
Plaintiffs argue that retroactively applying the lifetime registration requirement is
unconstitutional because it offends fundamental fairness by altering a factor that may
have affected Plaintiffs’ willingness to enter their plea agreements. (Dkt. # 96, Pg. ID
5703-05 (relying on St. Cyr, 533 U.S. at 323, in which the Supreme Court held that
changes to immigration laws which repealed discretionary relief from deportation did not
apply retroactively for a number of reasons, including the role such relief may have
played in defendants’ plea bargaining).) However, Plaintiffs have not raised breach of
contract or Fifth Amendment Takings claims, nor do they cite to any case law
supporting a higher degree of scrutiny when reviewing the retroactive application of a
law that may affect the government’s contractual obligations (including those
established by plea agreements). Because Plaintiffs provide no basis for reviewing the
retroactive application of SORA’s lifetime registration requirement using a heightened
level of scrutiny—except as to the lifetime registration requirement’s incorporation of the
Internet reporting provision—the court will uphold the general retroactive application of
the legislation if it is justified by a rational legislative purpose.’” Franklin Cnty.
Convention Facilities Auth., 240 F.3d at 550 (6th Cir. 2001) (quoting Pension Benefit
Guar. Corp., 467 U.S. at 730).
2. Rational Legislative Purposes Justifying Retroactivity
60

Defendants proffer three governmental purposes for the retroactive application of
SORA: to enhance public safety, to conform with federal law and avoid losing federal
funding, and to create a uniform nation-wide sex offender registration system. (Dkt. #
97, Pg. ID 5738-41.) The retroactive application of the lifetime registration requirement
is justified by all three purposes.
i. Public Safety
Plaintiffs conceded that public safety is an “important interest,” and the Sixth
Circuit has found that states have a compelling interest in protecting public safety. E.g.,
Grider v. Abramson, 180 F.3d 739, 749 (6th Cir. 1999); Tanks v. Greater Cleveland
Reg. Transit Auth., 930 F.2d 475, 480 (6th Cir. 1991). Defendants argue that the
retroactive application of the lifetime registration requirement helps achieve this goal
because “the public safety concerns posed by sex offenders are much the same,
regardless of when they were convicted.” (Dkt. # 97, Pg. ID 5741 (citation omitted).)
Plaintiffs disagree, arguing that lifetime registration does not serve public safety but
rather is a detriment to public safety. Although opinions about sex offender registries’
effects on public safety may differ (cf. Dkt. # 90, Pg. ID 3843), it was reasonable for the
Michigan legislature to “determine[] that a person who has been convicted of committing
an offense covered by this act poses a potential serious menace and danger to . . . the
people, and particularly the children, of this state,” and SORA’s registration
requirements would enhance public safety by “provid[ing] 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.” Mich. Comp. Laws § 28.721a. Just
as providing the public and law enforcement with the means to monitor sex offenders
61

who were convicted twenty years ago is rationally related to protecting public safety, so
too is providing the public and law enforcement with the means to monitor sex offenders
who were convicted thirty years ago, or more.
ii. Conform with Federal Law
In enacting the Sex Offender Registration and Notification Act (“SORNA”), 42
U.S.C. §§ 16901 et seq., Congress hoped “to protect the public from sex offenders and
offenders against children” by “establishing a comprehensive national system for the
registration of those offenders.” 42 U.S.C. § 16901. “Rather than establishing a federal
agency to implement SORNA, Congress, through its spending power, U.S. Const. Art. I,
§ 8, directed all states and the District of Columbia to create local registries that comply
with specific national standards. 42 U.S.C. §§ 16911(10), 16912(a).” United States v.
Felts, 674 F.3d 599, 602 (6th Cir. 2012). For Michigan to comply with SORNA and
receive full funding under the Omnibus Crime Control and Safe Street Act of 1968, 42
U.S.C. §§ 3750 et. seq., Michigan must “substantially implement” SORNA. See 42
U.S.C. § 16925(a) (“For any fiscal year after the end of the period for implementation, a
jurisdiction that fails, as determined by the Attorney General, to substantially implement
this subchapter shall not receive 10 percent of the funds that would otherwise be
allocated for that fiscal year to the jurisdiction under subpart 1 of part E of title I of the
Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.).”).
Retroactivity is one factor in determining substantial implementation. SORNA “appl[ies]
to all sex offenders, including sex offenders convicted of the offense for which
registration is required prior to the enactment of the Act,” 28 C.F.R. § 72.3, and the
SMART office published a “Substantial Implementation Checklist” which lists
62

retroactivity as one of the factors in determining substantial compliance. (Dkt. # 93-33,
Pg. ID 5489.) Thus, even if the retroactive application of SORA’s lifetime registration
requirement is not necessary for achieving substantial implementation of SORNA, it is
undoubtedly justified by the goal of substantial implementation. In fact, the parties
disclosed that “[t]he Substantial Implementation Review conducted by SMART indicated
that Michigan’s retroactivity provisions substantially complied with SORNA.” (Dkt. # 90,
Pg. ID 3787.)
Plaintiffs assert that the desire to conform with federal law does not provide a
rational basis for the retroactive application of the lifetime registration requirement for
because SORNA does not compel Michigan to implement SORNA. (Dkt. # 96, Pg. ID
5710 (citing Printz v. United States, 521 U.S. 898, 924 (1997) (“[E]ven where Congress
has the authority under the Constitution to pass laws requiring or prohibiting certain
acts, it lacks the power directly to compel the States to require or prohibit those acts

.

. . .”)).) This argument is unpersuasive. The Sixth Circuit has interpreted SORNA as a
directive to states to comply with federal standards, and the desire to aid in achieving
that goal is a rational justification for trying to achieve substantial implementation. Felts,
674 F.3d at 602. Likewise, failing to substantially comply with SORNA would result in
lost federal funding. Plaintiffs claim that the lost funding cannot justify retroactivity
because the cost of substantially implementing SORNA exceeds the lost federal
funding. The parties estimate that Michigan would lose about $1 to $2 million a year in
federal funding if Michigan is not substantially compliant with SORNA.
Plaintiffs argue that the cost of SORNA compliance significantly outweighs the
potential loss in federal funding. (Dkt. # 96, Pg. ID 5711-12.) This is not an easy
63

calculation, in part because Michigan obtains other benefits from implementing a sex
offender registry besides the federal funding, including enhanced public safety. This is
evident because Michigan had enacted its offender registry before SORNA.
Defendants urge the court that “[t]he only costs that can reasonably be considered costs
of ‘SORNA compliance’ are the . . . costs of the OffenderWatch software, which amount
to only $260,000 for annual maintenance and support.” (Dkt. # 100, Pg. ID 5850.)
Defendants’ suggestion is both overinclusive and underinclusive for the purposes of
determining whether federal funding is a rational justification for applying the lifetime
registration requirement retroactively. It is overinclusive in that major portions of the
cost of the OffenderWatch software are unattributable to the retroactive application of
the lifetime registration requirement. It is underinclusive because it does not include the
cost of training and other personnel costs related to implementing SORNA. Yet,
Michigan presumably would need to invest in substantially the same amount of
overhead and training whether SORA’s lifetime registration requirement applies
retroactively or merely prospectively. The court cannot determine the specific cost of
applying the lifetime registration requirement retroactively, but it seems highly likely that
it amounts to less than $1 to $2 million dollars per year. Increasing the likelihood of
receiving full funding under the Omnibus Crime Control and Safe Street Act of 1968 is a
rational legislative purpose justifying the retroactive application of the lifetime
registration requirement.
iii. Contributing to National Uniformity of Sex Registration Laws
The desire to contribute to the goal of national uniformity of sex registration laws
is a legitimate government purpose, too. Congress enacted SORNA specifically to
64

“establish[] a comprehensive national system for the registration of [sex] offenders,” 42
U.S.C. § 16901 out of an “awareness that pre-Act registration law consisted of a
patchwork of federal and 50 individual state registration systems.” Reynolds v. United
States, 132 S. Ct. 975, 978 (2012). Uniformity across jurisdictions can enhance public
safety and reduce the burden on registrants by making it easier for registrants (and the
public) to be aware of the reporting requirements in any given jurisdiction. The
retroactive application of the lifetime registration requirement helps further the goal of
uniformity. Seventeen states, three territories, and sixty-one tribes substantially
complied with SORNA as of July 2014. (Dkt. # 90, Pg. ID 3776.) Although this falls
short of uniformity, the substantial number of jurisdictions that have complied contribute
to fair notice and enhanced public safety by normalizing reporting requirements.5
In sum, the court finds that the retroactive application of SORA’s lifetime
registration requirement is justified by rational government purposes and is therefore
constitutional. The court, however, reiterates that this finding does not apply to those
SORA provisions which the court finds constitutionally infirm.
3. The Lifetime Registration Requirement’s Incorporation of the Internet
Reporting Provision
By applying the lifetime registration requirement retroactively, SORA also
extends its Internet reporting requirement retroactively. The requirement to report “[a]ll

5

Plaintiffs note that some aspects of SORA are not directly consistent with
SORNA and therefore cannot contribute to national uniformity. (Dkt. # 99, Pg. ID 5812.)
Not all of Michigan’s policy decisions must be related to achieving every one of its
goals; this is impossible wherever goals conflict. The retroactive application of SORA
may be justified by the goal of national uniformity even though some of SORA’s
provisions do not contribute to uniformity.
65

electronic mail addresses and instant message addresses assigned to the individual . . .
and all login names or other identifiers used by the individual when using any electronic
mail address or instant messaging system” has a minimal impact on Plaintiffs’ First
Amendment rights. Because of this minimal impact, the court must consider whether
the reporting requirement’s retroactive application, due to its incorporation through the
retroactive lifetime registration requirement, is narrowly tailored to serve a significant
government interest, while leaving ample alternative channels for communicating
information. Ward, 491 U.S. at 791.
As discussed supra in Section III.C, the reporting requirement is content-neutral,
it does not prohibit any protected speech, and it does not interrupt Plaintiffs’ right to
anonymous speech by unveiling their identities to the public. Its impact on Plaintiffs’
free speech rights is minimal, and Michigan has a robust interest in protecting the
individuals, especially children, from online predators. Nonetheless, Defendants have
not briefed whether the retroactive application of the Internet reporting provision,
through its incorporation in the lifetime registration requirement, survives intermediate
scrutiny. Additional briefing would be helpful in resolving this issue. The court will
reserve ruling on this question.
E. Count IX: Violation of the Ex Post Facto Clause
Plaintiffs assert that the November 2013 amendment to SORA instituting a
requirement that registrants pay a $50.00 annual registration fee violates Article I,
Section 9, Clause 3 of the Constitution of the United States, which states, “No Bill of
Attainder or ex post facto Law shall be passed.” Mich. Comp. Laws § 28.725a(6) (eff.
Apr. 1, 2014).
66

Before determining whether the annual registration fee violates the Ex Post Facto
Clause, the court must determine whether its review of this claim is barred by the Tax
Injunction Act, 28 U.S.C. § 1341. The Tax Injunction Act provides: “The district courts
shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under
State law where a plain, speedy and efficient remedy may be had in the courts of such
State.” 28 U.S.C. § 1341.
The purpose of the Tax Injunction Act is “to promote comity and to afford states
the broadest independence, consistent with the federal constitution, in the
administration of their affairs, particularly revenue raising.” Wright v. McClain, 835 F.2d
143, 144 (6th Cir. 1987). “It is elemental . . . that the label given an assessment by
state law is not dispositive of whether the assessment is a ‘tax under state law.’ Rather,
the definition of the term ‘tax’ is a question of federal law, and the issue here is whether
the assessment is a tax within the meaning of that term as employed by Congress in the
Tax Injunction Act.” Hedgepeth v. Tennessee, 215 F.3d 608, 612 (6th Cir. 2000)
(quoting Wright, 835 F.2d at 144). To determine whether an assessment constitutes a
tax, courts utilize a three-factor test: “(1) the entity that imposes the assessment; (2) the
parties upon whom the assessment is imposed; and (3) whether the assessment is
expended for general public purposes, or used for the regulation or benefit of the parties
upon whom the assessment is imposed.” Id. at 612 (quoting Am. Landfill, Inc. v.
Stark/Tuscarawas/Wayne Joint Solid Waste Mgmt. Dist., 166 F.3d 835, 837 (6th Cir.
1999)). If “the assessment falls near the middle of the spectrum between a regulatory
fee and a classic tax, the predominant factor is the revenue’s ultimate use. When the
ultimate use is to provide a general public benefit, the assessment is likely a tax, while
67

an assessment that provides a more narrow benefit to the regulated [entities] is likely a
fee.” Id. (quoting Am. Landfill, 166 F.3d at 838). “Fees can serve regulatory purposes
as distinguished from general public purposes in two ways: either by discouraging
particular conduct through the device of making it more costly, or by generating income
ear marked to cover the cost of the regulation.” Id.
Plaintiffs argue that, although the first factor suggests that the registration fee is a
tax because it was imposed by the Michigan legislature, the latter two factors support
the alternate conclusion. The registration fee is imposed exclusively on registrants,
and, pursuant to SORA, 60% of the fee goes to the Michigan State Police to be
deposited in the sex offenders registration fund and the other 40% is “retained by the
court, local law enforcement agency, sheriff’s department, or departmental post.” Mich.
Comp. Laws. § 28.725b. The money credited to the fund may only be used for training
and law enforcement purposes related to SORA. Mich. Comp. Laws § 28.725b. In
sum. Plaintiffs insist that the fee is not a tax because:
It is imposed only upon a tiny fraction of the state’s population; the clear
purpose is to help defray the agency’s regulation-related expenses; the
charge discourages particular conduct or makes it more expensive; the bulk
of the money is segregated in a specially created account; none of the
money is paid to general state funds unrelated to SORA’s added costs; and
unused SOR funds cannot lapse to the general fund.
(Dkt. # 99, Pg. ID 5838.) Plaintiffs’ argument is supported by Mueller v. Raemisch, 740
F.3d 1128 (7th Cir. 2014), in which the Seventh Circuit considered an ex post facto
challenge against the annual registration fee for Wisconsin’s sex offender registry.
Without explicitly addressing the Tax Injunction Act, the Seventh Circuit noted that the

68

parties “acknowledged in this case that if the $100 annual fee is not a bona fide fee, it is
a fine rather than a tax.” Id. at 1133.
Sixth Circuit precedent, however, precludes the court from categorizing the
annual registration fee as anything but a tax. In Wright, the Sixth Circuit considered
whether a Tennessee law requiring parolees to make monthly payments to a
supervision fund and a victim’s compensation fund imposed a tax within the meaning of
the Tax Injunction Act. 835 F.2d 143. The Sixth Circuit concluded that the charges
were taxes, reasoning that:
Although the levies imposed under the statute are earmarked for the
Corrections Department budget and not the general fund, they are no less for
revenue raising purposes as distinguished from license or privilege fees, or
punitive assessments. The purposes of the charges are to defray the cost
to the general public of monitoring and supervising the behavior of convicted
offenders and to compensate, in some measure, victims of criminal
misconduct. Those purposes relate directly to the general welfare of the
citizens of Tennessee and the assessments to fund them are no less general
revenue raising levies simply because they are dedicated to a particular
aspect of the commonwealth.
Id. at 145.
Similarly, although the annual registration fee is earmarked for the administration
of SORA, SORA is hardly a privilege that registrants pay for their own benefit. Instead,
the registration fee was implemented to “offset the loss of grant funding and other
budget shortfalls” (Dkt. # 96, Pg. ID 5715) and fund the administration of SORA which
serves the general welfare by protecting the general population from future sex crimes.
Mich. Comp. Laws § 28.721a.
Plaintiffs ask the court to disregard Wright because it was decided before the
Sixth Circuit adopted the three-part test articulated in Hedgepeth and American Landfill.

69

(Dkt. # 99, Pg. ID 5836.) Under Plaintiff’s theory, SORA’s annual registration fee is not
a tax because, although the purpose of SORA’s annual registration fee is to serve the
general welfare by administering SORA, “the assessment is . . . used for the regulation
. . . of the parties upon whom the assessment is imposed.” Hedgepeth, 215 F.3d 608,
612 (emphasis added). Nevertheless, this reasoning conflicts with Wright, and “[i]t is
firmly established that one panel of [the Sixth Circuit] cannot overturn a decision of
another panel; only the court sitting en banc can overturn such a decision.” United
States v. Lanier, 201 F.3d 842, 846 (6th Cir. 2000).
Wright is directly on point; the purpose of the $50 registration fee is “to defray the
cost to the general public of monitoring and supervising the behavior of [sex] offenders.”
and to compensate, in some measure, victims of criminal misconduct. Wright, 835
F.2d at 145. The Sixth Circuit has not overturned Wright; in fact, both Hedgepeth and
American Landfill rely on Wright to hold that the assessments at issue are taxes under
the Tax Injunction Act. See Hedgepeth, 215 F.3d at 613 (“The State's assessments are
allocated in a manner that make it clear the ultimate purpose of the assessments is to
benefit the general public of the State of Tennessee. As such, the assessment must
constitute a tax under the [Tax Injunction Act]. The State’s highway fund, the general
fund, the police pay supplement fund, and the trooper safety fund ‘relate directly to the
general welfare of the citizens of Tennessee and the assessments to fund them are no
less general revenue raising levies simply because they are dedicated to a particular
aspect of the commonwealth.’ Wright, 835 F.2d at 145.”) (internal quotation mark
omitted); Am. Landfill, 166 F.3d at 839 (“Analyzing the assessments in question in this
case under the case law above leads to the conclusion that the assessments are
70

‘taxes.’ Under Wright v. McClain . . . , the assessments are placed in a fund that, while
separate from the general fund, serves public purposes benefitting the entire
community.”). Therefore, to the extent that Wright conflicts with later Sixth Circuit case
law, Wright controls and dictates that the court treat the registration fees as a tax rather
than a privilege fee. Because the annual registration fee constitutes a tax for the
purposes of the Tax Injunction Act, the court does not have jurisdiction to decide
whether Mich. Comp. Laws § 28.725a(6) violates the Ex Post Facto Clause.
IV. CONCLUSION
For the reasons stated above,
IT IS ORDERED that Plaintiffs’ Rule 52 Motion for Judgment on the Papers (Dkt.
# 96) is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Defendants’ Rule 52 Motion for Judgment on
the Papers (Dkt. # 97) is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that the Sex Offender Registration Act, Mich. Comp.
Laws §§ 28.721 et seq., shall be construed consistently with this opinion.
IT IS FURTHER ORDERED that SORA’s geographic exclusion zones provisions,
Mich. Comp. Laws §§ 28.734, 28.735, are declared unconstitutional and their
enforcement is enjoined, as applied to Plaintiffs.
IT IS FURTHER ORDERED that the requirement “to report in person and notify
the registering authority . . . immediately after . . . [t]he individual . . . begins to regularly
operate any vehicle,” Mich. Comp. Laws § 28.725(1)(g), is declared unconstitutional and
its enforcement is enjoined, as applied to Plaintiffs.

71

IT IS FURTHER ORDERED that the requirement “to report in person and notify
the registering authority . . . immediately after . . . [t]he individual establishes any
electronic mail or instant message address, or any other designations used in internet
communications or postings,” Mich. Comp. Laws § 28.725(1)(f), is declared
unconstitutional and its enforcement is enjoined.
IT IS FURTHER ORDERED that the requirement to report “[a]ll telephone
numbers . . . routinely used by the individual,” Mich. Comp. Laws § 28.727(1)(h), is
declared unconstitutional and its enforcement is enjoined.
IT IS FURTHER ORDERED that the requirement to report “[a]ll electronic mail
addresses and instant message addresses . . . routinely used by the individual,” Mich.
Comp. Laws § 28.727(1)(I), is declared unconstitutional and its enforcement is enjoined.
IT IS FURTHER ORDERED that the requirement to report “[t]he license plate
number, registration number, and description of any motor vehicle, aircraft, or vessel . . .
regularly operated by the individual,” Mich. Comp. Laws § 28.727(1)(j), is declared
unconstitutional and its enforcement is enjoined, as applied to Plaintiffs.
IT IS FURTHER ORDERED that the court reserves judgment on whether Mich.
Comp. Laws § 28.725a(7) is unconstitutional as applied to John Doe #4 and will request
additional briefing in a forthcoming order.
IT IS FURTHER ORDERED that the court reserves judgment on whether it is
constitutional for the lifetime registration requirement’s incorporation of the requirement
to report “[a]ll electronic mail addresses and instant message addresses assigned to the
individual . . . and all login names or other identifiers used by the individual when using
any electronic mail address or instant messaging system,” Mich. Comp. Laws §
72

28.727(1)(i), to be applied retroactively and will request additional briefing in a
forthcoming order.
IT IS FURTHER ORDERED that the court reserves judgment on Plaintiffs’
request for costs and attorneys’ fees pursuant to 42 U.S.C. § 1988 and Mich. Const. Art.
9, § 32, pending the resolution of the remaining issues in this case.
IT IS FURTHER ORDERED that judgment is entered in Defendants favor in all
other respects.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: March 31, 2015
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, March 31, 2015, by electronic and/or ordinary mail.

s/M. Beauchemin
Deputy Clerk
[phone]

73