Does et al v. SNYDER et al

Filing 110

ORDER Setting Hearing on the remaining issues of the 96 MOTION for Judgment filed by Mary Doe, John Doe #5, John Does :( Motion Hearing set for 6/9/2015 03:00 PM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (LWag)

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.
/
NOTICE OF MOTION HEARING
Plaintiffs John Does #1-5 and Mary Doe filed a nine count First Amended
Complaint challenging the constitutionality of the Michigan’s Sex Offenders Registration
Act (“SORA”), as amended in 2011 and 2013. (Dkt. # 46, Pg. ID 840.) Both parties
filed Rule 52 motions for judgment on the stipulated facts and records submitted by the
parties. (See Dkt. ## 90-95). The court resolved the majority of Plaintiffs’ claims in the
March 28, 2013 Opinion and Order Granting in Part and Denying in Part Defendants’
Amended Motion to Dismiss (Dkt. # 27, Pg. ID 669) and the March 31, 2015 Opinion
and Order Resolving Motions for Judgment (Dkt. # 103, Pg. ID 5875). In the latter
opinion, the court reserved judgment on two issues raised by Plaintiffs: (1) whether
Mich. Comp. Laws § 28.725a(7) is unconstitutional as applied to John Doe #4 and (2)
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 § 28.727(1)(i), to be applied retroactively. (Dkt. # 103, Pg. ID 5946.) The
court requested additional briefing on both issues, which the parties provided on April
20, 2015. (Dkt. ## 104, 106, 107.) After reviewing the record, the court has determined
that a hearing is necessary to resolve these issues.
I. The Constitutionality of Mich. Comp. Laws § 28.725a(7) as Applied to Mr. Doe #4
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.
Plaintiffs contend that § 28.725a(7) violates the Due Process Clause because
Mr. Doe #4 “is automatically and unpreventably in violation” of SORA inasmuch as “he
is homeless [and] cannot update his driver’s license to match his registration address
(which is ‘homeless’).” (Dkt. # 96, Pg. ID 5692.) In the Joint Statement of Facts, the
parties stipulated:
Since becoming homeless Mr. Doe #4 has been unable to comply with the
SORA requirement that he maintain a driver’s license or personal
identification that matches the address he uses to register for SORA. The
Secretary of State will not issue identification with ‘homeless’ as an address.
Mr. Doe #4, who is registered under SORA as homeless, cannot get a
driver’s license that matches his registration information.
(Dkt. # 90, Pg. ID 3939.)
The requirement that the address listed on a registrant’s Michigan identification
card match the address he uses to register for SORA is not immediately apparent from
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a plain reading of § 28.725(a)(7); nonetheless, “Defendants admit that registrants are
strictly liable if they do not have a driver’s license or personal identification card that
matches their registry address . . . .” (Id.) Similarly, the parties provided an excerpt of
Michigan State Police Official Order 79, dated April 27, 2007, which also appears to
require that the address listed on the Michigan identification card and the address used
to register with SORA are the same:
G. If the offender is homeless, the generic address of ‘123 Homeless’ shall
be entered into the computerized database, along with the offender’s city,
state, zip code, and country code.
...
5.
...
B. The address on the SOR record must match the address on the Michigan
driver license or Personal Identification Card. If the address does not match,
the member shall give the offender the opportunity to immediately visit the
nearest Secretary of State branch office for the necessary address change
and return to the post to verify their address before taking enforcement
action.
(Dkt. # 91-23, Pg. ID 4911.)1
At the hearing, the parties should be prepared to discuss whether the address
listed on the Michigan identification card and the address used to register with SORA
must match.
Additionally, Defendants suggest that Mr. Doe #4 is able to obtain a Michigan
identification card by “provid[ing] a letter from a homeless shelter reflecting he is
homeless and using the shelter’s services,” and that Mr. Doe #4 may physically receive
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The court infers from the docketed excerpt of Order 79 that paragraph “G” is a
subsection of Section 4; however, the beginning of Section 4 is not included in the
excerpt. The court requests that, prior to the June 9, 2015 hearing, the parties provide
the court with a full version of Order 79.
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an identification card—which is sent by the Secretary of State through the United States
Postal Service—by providing a post office box or a family member’s or friend’s address
as a mailing address. (Dkt. # 107, Pg. ID 5973-74.) Defendants, however, do not point
to anything in the record showing that Mr. Doe #4 utilizes a shelter’s services or has a
post office box or alternative mailing address at which to receive mail from the Secretary
of State. At the hearing, the parties should be prepared to discuss whether it is possible
for Doe #4 to obtain a Michigan identification card through the means suggested by
Defendant or by some other means.
II. THE RETROACTIVE APPLICATION OF THE INTERNET REPORTING PROVISION
In the Opinion and Order Resolving Motions for Judgment, the court considered
whether the 2011 SORA amendments’ retroactive extension of Doe #3’s, Doe #4’s, and
Ms. Doe’s registration period from twenty-five years to life violated the Due Process
Clause of the Fourteenth Amendment. (Dkt. # 103, Pg. ID 5929-40.) The court held
that, in general, the retroactive application of SORA’s lifetime registration requirement is
constitutional; however, the court noted that this finding does not apply to the provisions
of SORA which the court found constitutionally infirm. (Dkt. # 103, Pg. ID 5939.) The
court also reserved judgment on the constitutionality of the retroactive application of
SORA’s Internet reporting provision, through its incorporation in the lifetime registration
requirement. (Id. at 5940.) The Internet reporting provision 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

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any electronic mail address or instant messaging system.”2 Mich. Comp. Laws
28.727(1)(i).
The First Amendment, as applied to the states through the Fourteenth
Amendment, protects individuals from laws abridging the freedom of their speech. The
Supreme Court has expressed that “the 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
Court further clarified:
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. To be sure, this standard
does not mean that a time, place, or manner regulation may burden
substantially more speech than is necessary to further the government's
legitimate interests. Government may not regulate expression in such a
manner that a substantial portion of the burden on speech does not serve to
advance its goals. So long as the means chosen are not substantially
broader than necessary to achieve the government’s interest, however, the
regulation will not be invalid simply because a court concludes that the

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Section 28.727(1)(i) also requires registrants to report “[a]ll electronic mail
addresses and instant message addresses . . . routinely used by the individual.” The
court declared this requirement unconstitutional and enjoined its enforcement in the
Opinion and Order Resolving Motions for Judgment and, therefore, need not consider
whether its retroactive application comports with the Due Process Clause. (Dkt. # 103,
Pg. ID 5946.)
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§

government’s interest could be
less-speech-restrictive alternative.

adequately

served

by

some

Id. at 798-800 (internal quotation marks and citations omitted).
The court also recognizes that, in general, “[r]etroactivity is not favored in the
law,” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988), and that “a
justification sufficient to validate a statute's prospective application under the Clause
‘may not suffice’ to warrant its retroactive application.” Landsgraf v. USI Film Prods.,
511 U.S. 244, 266 (1994).
The court previously found that Michigan has “a compelling interest in protecting
minors from violence and sexual abuse” and “a robust interest in protecting the
individuals, especially children, from online predators.” (Dkt. # 103, Pg. ID 5921, 5940.).
The parties now dispute whether retroactively requiring certain registrants to comply
with the Internet reporting requirements for life, rather than for twenty-five years, is
narrowly tailored to those government interests and leaves alternative channels for
communication.
Both parties should be prepared to address the arguments raised in the
supplemental briefs related to whether the retroactive application of the lifetime Internet
reporting requirements is narrowly tailored. In particular, the parties should be prepared
to discuss Plaintiffs’ contentions that: Defendants have failed to explain how lengthening
the reporting requirements from twenty-five years to life will deter crime or otherwise
protect the public from online predators; “it is more likely that a non-registrant will
commit an ‘out of the blue’ sex offense than that even the highest-risk offender will
commit such a crime after 15 years, let alone 25 years;” “[l]ifetime reporting illogically
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demands that registrants report their speech when they are least likely to commit a
crime;” due to “the collection of huge amounts of indiscriminate data, the requirement
will make it more difficult—not easier—for law enforcement to focus on individuals who
truly pose an on-line threat;” and “the retroactive reporting requirement is not narrowly
tailored because it applies to all registrants, including registrants whose offenses did not
involve computers.” (Dkt. # 106, Pg. ID 5961-63.) Similarly, the parties should be
prepared to discuss, in particular, Defendants’ contentions that: applying the lifetime
Internet reporting requirements retroactively is narrowly tailored because the reported
information is only available to law enforcement; the reporting requirements do not
prohibit any speech; and, without retroactive lifetime application of the reporting
requirements, Michigan’s database, other States’ databases, and/or the National
Registry would be “render[ed] . . . less effective.” (Dkt. # 107-5977-78.)
IT IS ORDERED that a motion hearing is scheduled for June 9, 2015 at 3:00
PM.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: May 8, 2015
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, May 8, 2015, by electronic and/or ordinary mail.

s/Lisa G. Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C1 ORDERS\12-11194.DOES.hearing notice.dmi.wpd

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