Does et al v. SNYDER et al

Filing 118

OPINION AND ORDER Resolving Outstanding Issues, GRANTING IN PART AND DENYING IN PART 97 Defendants' Rule 52 Motion filed and 96 GRANTING IN PART AND DENYING IN PART Plaintiffs' Rule 52 MOTION for Judgment ; DECLARING Mich. C omp. Laws 28.725a(7) Unconstitutional and its Enforcement is Enjoined as Applied to John Doe #4 and IT IS FURTHER ORDERED that the Mich. Comp.Laws 27.727(1)(i) is DECLARED Unconstitutional and its Enforcement is Enjoined. Signed by District Judge Robert H. Cleland. (LWag)

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

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

Case No. 12-11194

RICHARD SNYDER and COL. KRISTE ETUE,
Defendants.
/
OPINION AND ORDER RESOLVING OUTSTANDING ISSUES RAISED IN
PLAINTIFFS’ AND DEFENDANTS’ MOTIONS FOR JUDGMENT
Plaintiffs John Doe #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.) The court held a hearing on the remaining issues on
June 11, 2015. For the reasons stated on the record and discussed below, the court
finds that (1) Mich. Comp. Laws § 28.725a(7) is unconstitutional as applied to Doe #4
and (2) it is unconstitutional for the lifetime registration requirement’s incorporation of
the Internet reporting requirement to be applied retroactively.
I. The Constitutionality of Mich. Comp. Laws § 28.725a(7) as Applied to Mr. Doe #4
A. Standard
The Fourteenth Amendment of the Constitution of the United States provides that
no state “shall deprive any person of life, liberty, or property, without due process of
law.” Const. amend. XIV. Holding an individual criminally liable for failing to comply
with a duty imposed by statue, with which it is legally impossible to comply, deprives
that person of his due process rights. Cf. Grayned v. City of Rockford, 408 U.S. 104,
108 (1972) (“[W]e assume that man is free to steer between lawful and unlawful
conduct, [and, therefore,] we insist that laws give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he may act accordingly.);
United States v. Mise, 240 F.3d 527, 530 (considering and rejecting a due process
impossibility challenge to a statute requiring the defendant to register a pipe bomb on
the ground that the defendant did not present evidence that registration was legally
impossible); United States v. Felts, 674 F.3d 599, 605 (6th Cir. 2012) (choosing not to
address a due process impossibility attack on the Sex Offender Registration Notification
Act, 42 U.S.C. § 16901 et seq., because “[the defendant] cites no specific
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inconsistencies between Tennessee law and SORNA that would have rendered it
“impossible for [him] to comply with SORNA in Tennessee”). Similarly, a “pure status
crime” which does not require any conduct in order to impose punishment but rather
penalizes a person for his “mere status” is unconstitutional. See Powell v. State of Tex.,
392 U.S. 514, 542 (1968); Robinson v. State of Cal., 370 U.S. 660, 667 (1962) (holding
that “a state law which imprisons a person thus afflicted as a criminal, even though he
has never touched any narcotic drug within the State or been guilty of any irregular
behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth
Amendment”).
B. Discussion
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.[1] 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.
An individual who fails to comply with the requirement to maintain a state
identification card “is guilty of a misdemeanor punishable by 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 contend that § 28.725a(7) violates the Due Process Clause
1

This opinion uses the term “state identification card” to refer to valid operator’s
licenses, valid chauffeur’s licenses, and official state personal identification cards,
collectively.
3

because 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.) The court agrees.
Based on the record before the court, it appears that it is impossible for a
homeless person who does not utilize the services of a homeless shelter, agency, or
some other organization, to obtain a state identification card. In fact, the parties
stipulated that:
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.
(Dkt. # 90, Pg. ID 3939.)
Defendants concede that an applicant must establish proof of residence in order
to obtain a state identification card. (Dkt. # 107, Pg. ID 5972.) See Mich. Comp. Laws
§ 28.291(1). The Michigan Secretary of State requires that applicants for a state
identification card present at least two documents displaying their name and Michigan
residence’s address in order to establish proof of Michigan residence. (Dkt. # 107-2.)
Nothing in the record suggests that Doe #4 utilizes the services of a homeless shelter,
agency, or other organization. He does not have an address, and, accordingly, cannot
provide the necessary documentation to obtain a state identification card.
The court refrains from construing § 28.725a(7) to compel homeless persons to
utilize the services of a shelter, agency, or other organization. Courts “ordinarily resist
reading words or elements into a statute that do not appear on its face.” Elonis v.
United States, 135 S. Ct. 2001, 2014-15 (2015) (internal quotation marks omitted).
4

When construing a statute more narrowly than its plan meaning, courts attempt to do
“‘the least damage’ to the statute” possible. United States v. Coatoam, 245 F.3d 553,
58 (6th Cir. 2001). Construing a statutory provision that requires registrants to maintain
a state identification card to compel homeless registrants to associate with a shelter,
agency, or other organization would do far greater harm to the plain meaning of

§

28.725a(7) than finding the identification card requirement inapplicable to homeless
persons who are without a valid address. Such a construction would introduce an
intrusive burden on homeless registrants that is not reflected in the plain meaning of the
statute.2
The court, therefore, finds that § 28.725a(7) violates the Due Process Clause as
applied to Doe #4 because it is impossible for Doe #4 to comply with the statute.
II. THE RETROACTIVE APPLICATION OF THE INTERNET REPORTING PROVISION
A. Standard
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

2

Furthermore, the record does not establish whether there would be a shelter,
agency, or organization available to Doe #4 were he to attempt to utilize such services.
5

Against Racism, 491 U.S. 781, 791 (1989) (internal quotation marks omitted). The
Court further clarified that
. . . 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
government’s interest could be adequately served by some
less-speech-restrictive alternative.
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 [Due
Process] Clause ‘may not suffice’ to warrant its retroactive application.” Landsgraf v.
USI Film Prods., 511 U.S. 244, 266 (1994).
B. Discussion
In the Opinion and Order Resolving Motions for Judgment, dated March 31,
2015, 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
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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 or routinely used
by 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). In its March 31, 2015 opinion, the court declared the requirement to report
email and instant message addresses that are “routinely used by the individual”
unconstitutional and enjoined its enforcement. (Dkt. # 103, Pg. ID 5946.) The court
held that the prospective application of the rest of the of Internet reporting
requirement—absent the “routinely used by the individual” clause—survived
intermediate scrutiny and was, therefore, constitutional. In so holding, the court found
that Michigan has “a compelling interest in protecting minors from violence and sexual
abuse” (Dkt. # 103, Pg. ID 5921) and later noted that Michigan has “a robust interest in
protecting the individuals, especially children, from online predators.” (Id. at 5940.)
The parties concede that Michigan has a significant interest in “investigating and
deterring criminal activity” but now dispute whether retroactively requiring certain
registrants to comply with the Internet reporting requirement for life, rather than for
twenty-five years, is narrowly tailored to achieve that interest. (Dkt. # 106, Pg. ID 5960.)
Plaintiffs contend that “Defendants have offered no reason why 25 years of
reporting would be insufficient . . . [nor] explained how lengthening reporting
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requirements form 25 years to life does anything to deter crime.” (Id. 5960-61.)
Moreover, they cite to research presented by an expert witness which shows that, “for
medium-risk sex offenders, the risk of committing a sex offense drops off over time so
that after 10-14 years offense-free in the community, it is below the baseline for non-sex
offenders . . . [and] that high-risk sex offenders pose no more risk than [persons
arrested for non-sexual offense] after 17 years offense-free in the community. (Dkt. #
90, Pg. ID 3802-03.) In other words, a convicted sex offender who has not re-offended
in twenty-five years is less likely to commit a sex offense than someone who was
previously arrested for a non-sex offense. (Id. at 3803 (graph at ¶ 354).) Plaintiffs also
emphasize that the retroactive application of the Internet reporting requirement is
overbroad in light of the fact that only approximately 5.5% to 7% of registrants were
convicted of Internet or computer-related offenses. (Id. at 3874.) Likewise, Plaintiffs
note that, while the reporting requirement does not prohibit any speech, it appears to
have had a substantial chilling effect on registrants’ speech—whereas 92% of adult
Americans use email, fewer than half of non-incarcerated Michigan registrants report
having an email address or other Internet identifier. (Id. 3882.)
It is Defendants’ burden to show that the retroactive extension of the Internet
reporting requirement from twenty-five years to life is narrowly tailored—meaning
Defendants must show that such retroactive extension of the requirement does not
“burden substantially more speech than is necessary to further the government's
legitimate interests.” Ward, 491 U.S. at 799. Defendants have failed to carry this
burden.

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Defendants insist that the retroactive extension of the Internet reporting
requirement from twenty-five years to life is narrowly tailored because “[t]he required
internet information is available only to law enforcement,” “[t]he required information
includes only electronic mail and instant message addresses, login names or other
identities assigned to the individual,” and the court’s ruling concerning the “routinely
used by the individual” clause further tailors the reporting requirement. (Dkt. # 107, Pg.
ID 5976.) Defendants also assert that “[t]he State’s significant interest in protecting
minors and vulnerable adults from internet predators would be substantially impaired
absent this retroative internet registration requirement.” (Id. at 5977.) Without the
retroactive application of the requirement, “investigations could be needlessly delayed
and suspects could esacpe detection.” (Id.)
At the motion hearing on June 11, 2015 and in their Supplemental Brief (Dkt. #
107), Defendants addressed many of the points raised by Plaintiffs. They suggest that
the fact that over 93% of registrations were not convicted of a computer or Internetrelated crime does not render the reporting requirement overbroad because having a
database of Internet identifiers is useful for investigating and deterring offenses not
related to computer use. They also attack the study which shows that registrants who
have not re-offended in twenty-five years are less likely to commit a sex offense than
persons who were arrested for a non-sex offenses on the grounds that the study had a
small sample-size, it had all male subjects, the study’s risk analysis was suspectible to
human error, and its definition of re-offending was limited to reconviction. However, it is
not Plaintiffs’ burden to demonstrate that the retroactive application of the Internet
reporting requirement is not narrowly tailored, and Defendants’ bare assertion that
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requiring retroactive reporting would aid law enforcement in protecting the public is not
enough to survive First Amendment intermediate scrutiny.
It is not hard to imagine how the retroactive application of the reporting
requirement could assist law enforcement in protecting the public by making it easier to
investigate and deter sex offenses committed using the Internet. Including offenders for
life instead of only twenty-five years would add additional identifers to a searchable
database which could help in the investigation of a crime in which one of those
additional identifiers was used, and, in theory, it could deter a lifetime registrant from
committing an offense using one of the identifiers that he (or she) reported to law
enforcement.3 But the fact that extending the reporting requirement might enhance
public safety does not, by itself, mean that the extension is narrowly tailored. Indeed,
requiring persons arrested for any crime, all American citizens, or all persons present in
the United States to register their Internet identifiers could aid law enforcement in
investigating and deterring online sex offenses. If every American were required to
register his email address, law enforcement would have an even more robust database
to search when an Internet alias was used to commit an online offense. Of course,
without more in the record, the court would have no basis to find these hypothetical
registration requirements, which target individuals with no demonstrated enhanced risk
of recidivism, to be narrowly tailored.
3

The court questions whether any rational registrant would opt to use a registered
identifier in the commission of a crime rather than creating a new identifier for the
purposes of committing the crime. Even so, the database of Internet identifiers could be
useful in tracking the conduct of impulsive or irrational registants, and it may permit law
enforcement to arrest registrants for violating SORA when there is insufficient evidence
of a separate offense.
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Even crediting Defendants’ rebuttals to Plaintiffs arguments, Defendants have
not presented any evidence on which the court could find that requiring lifetime
reporting for registrants who have not been convicted of a sex offense in twenty-five
years is narrowly tailored to enhancing public safety any more than requiring lifetime
reporting for a random sample of 50,000 persons arrested for non-sex offenses. It is
true that the reporting requirement is tailored inasmuch as the reported Internet
identifiers do not prohibit any speech and are not currently available to the public. But,
without any evidence presented by Defendants showing that the retroactive application
of the reporting requirement increases public safety more than a reporting requirement
for 50,000 randomly selected Michiganders who were arrested for non-sex offenses, the
court cannot find the retroactive application narrowly tailored—no matter how minimal
the burden on the registrants.4
Defendants argued during the motion hearing that, in addition to the state’s
interest in public safety, the retroactive application of the Internet reporting requirement
contributes to the state’s interest in national uniformity of sex offender registration laws.
In its March 31, 2015 Opinion, the court found that the desire to contribute to the
national uniformity of sex offender registration laws was a legitimate government
4

The extent of the burden imposed by the reporting requirement is unclear from
the record. The notable difference between the percentage of registrants who report
Internet identifiers (less than 50%) and the percentage of adult Americans who use
email (92%) is suspectible to a number of interpretations, including that there is rampant
under-reporting, that the reporting requirement has a significant chilling effect on
Internet use, and that some other variable (e.g., time in prison or age) rather than SORA
is responsible for the disparity in Internet use. The court need not decide the magnitude
of the potential burden imposed on registrants by applying the Internet reporting
requirement retroactively; the court merely acknowledges that the retroactive application
would impose at least a minimal burden.
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purpose and that the retroactive application of the lifetime registration requirement helps
further the goal of uniformity. (Dkt. # 103, Pg. ID 5938-39.) Defendants have not cited
to case law suggesting that contributing to the national uniformity of laws is “a significant
governmental interest,” Ward, 491 U.S. at 791, particularly where an apparent minority
of jurisdictions have adopted the purportedly “uniform” law.
As of June 2014, seventeen states, three territories, and sixty-one tribes
substantially complied with the Sex Offender Registration and Notification Act
(“SORNA”), 42 U.S.C. §§ 16901 et seq. (Dkt. # 90, Pg. ID 3776), and retroactivity is one
of the factors in determining substantial compliance.5 (Dkt. # 93-33, Pg. ID 5489.)
Defendants have not identified which states, territories, and tribes have applied a
lifetime requirement to report Internet identifiers retroactively. Thus, the court is unable
to determine the extent to which extending SORA’s Internet reporting requirement
retroactively would contribute to national uniformity.
Under the circumstances, Defendants have not demonstrated that the desire to
conform Michigan sex offender registry with an unknown number of other jurisdictions’
registries is a substantial state interest; therefore, this interest cannot justify infringing
upon registrants’ First Amendment right to free speech by extending the Internet
reporting requirement retroactively from twenty-five years to life.
Last, it is worth noting that, while the court held in its March 31, 2015 opinion that
the prospective application of § 28.727(1)(i)—absent the “routinely used by the
individual” clause—survives intermediate scrutiny, the court’s inquiry into its retroactive
5

In order to avoid losing certain federal funding, states were required to comply
with SORNA by July 2011. (Dkt. # 90, Pg. ID 3776.)
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application is different. Whereas, in the previous opinion, the court considered whether
requiring registrants to report their Internet identifiers in general was narrowly tailored to
protecting Michigan residents from criminal activity, the question now before the court is
whether requiring registrants who have not committed an offense in twenty-five years to
continue to register their internet Identifiers is narrowly tailored to the significant interest
of preventing crime, while leaving ample alternative channels for communicating
information.
As stated above, “a justification sufficient to validate a statute’s prospective
application under the [Due Process] Clause ‘may not suffice’ to warrant its retroactive
application.” Landsgraf, 511 U.S. at 166. Such is the case here. The court relied, in
part, on Doe v. Harris, 772 F.3d 563 (9th Cir. 2014) and Doe v. Shurtleff, 628 F.3d 1217
(10th Cir. 2010) in concluding that the prospective application of § 28.727(1)(i) was
narrowly tailored to achieve the goal of aiding law enforcement in preventing and
investigating crime. (Dkt. # 103, Pg. ID 5918-29.). The court was able to reach this
finding because there is evidence in the record—i.e., the research presented by
Plaintiffs’ expert witness—showing that the majority of sex offenders are more likely to
commit a sex offense than individuals arrested for crimes other than sex offenses. (Dkt.
# 90, Pg. ID 3802-03.)
The research presented by Plaintiffs suggests that medium-risk and high-risk sex
offenders pose a greater threat of committing sex offenses than individuals arrested for
non-sex offenses for at least the first ten years after a convicted sex offender returns to
the community, but, as discussed above, these offenders present no greater risk of
committing a sex offense by their twenty-fifth year in the community than persons
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arrested for non-sex offenses. (Dkt. # 90, Pg. ID 3803.) The court found it unnecessary
to reduce the length of the Internet reporting requirement, as applied prospectively, in
light of the standard set forth by the Supreme Court in Ward. In Ward, the Court
expounded on the constitutional standard for content neutral regulations impacting free
speech, explaining, “[s]o long as the means chosen are not substantially broader than
necessary to achieve the government’s interest . . . , the regulation will not be invalid
simply because a court concludes that the government’s interest could be adequately
served by some less-speech-restrictive alternative.” 491 U.S. at 800 (emphasis added).

The record supports the court’s conclusion that the prospective application of the
Internet reporting provision is not substantially broader than necessary to enhance
public safety by deterring registrants from utilizing the Internet in committing future
offenses and making investigation of computer-based offenses easier on the grounds
that (1) convicted sex offenders pose an enhanced risk of committing sex offenses, (2)
SORA does not prohibit registrants from engaging in speech on the Internet, and (3)
SORA does disclose registrants’ Internet identifiers to the public. (Dkt. # 103, Pg. ID
5926.) Meanwhile, Defendants have not carried their burden of showing that extending
the reporting requirement from twenty-five years to life is narrowly tailored to contribute
to public safety because, as stated above, the record does not support the finding that

convicted sex offenders who have not re-offended in twenty-five years pose an
enhanced risk of committing sex offenses. The court’s inquiries regarding the

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prospective and retrospective applications of § 28.727(1)(i) are different, as are its conclusions.
III. CONCLUSION
IT IS ORDERED that Plaintiffs’ Rule 52 Motion for Judgment on the Papers (Dkt.
# 96) is GRANTED IN PART and DENIED IN PART, consistent with the court’s previous
orders.
IT IS FURTHER ORDERED that Defendants’ Rule 52 Motion for Judgment on
the Papers (Dkt. # 97) is GRANTED IN PART and DENIED IN PART, consistent with
the court’s previous orders.
IT IS FURTHER ORDERED that Mich. Comp. Laws § 28.725a(7) is declared
unconstitutional and its enforcement is enjoined, as applied to John Doe #4.
IT IS FURTHER ORDERED that the retroactive incorporation of 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), is declared
unconstitutional and its enforcement is enjoined.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: September 3, 2015
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, September 3, 2015, by electronic and/or ordinary mail.
s/Lisa G. Wagner
Case Manager and Deputy Clerk
[phone]

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