Poe et al v. Granholm et al
Filing
83
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________
JANE POE, JOHN DOE, ROBERT ROE,
MARK MOE, LARRY LOE, DEGAGE
MINISTRIES, and MEL TROTTER
MINISTRIES,
Plaintiffs,
v.
Case No. 1:10-CV-318
RICK SNYDER, Governor of the State
of Michigan, BILL SCHUETTE, Attorney
General of the State of Michigan,
KRISTE ETUE, Director of the Michigan
State Police, WILLIAM FORSYTH, Kent
County Prosecutor, in their official
capacities,
HON. GORDON J. QUIST
Defendants.
_____________________________________/
OPINION
Plaintiffs, five individuals with prior criminal sexual conduct (“CSC”) convictions, who are
either currently homeless or have been so in the past, and two non-profit, charitable organizations
that operate overnight shelters for homeless persons in Grand Rapids, Michigan, seek declaratory
and injunctive relief concerning application of the residency restrictions of Michigan’s Sex Offender
Registration Act (“SORA” or the “Act”), M.C.L.A. § 28.721, et seq. to emergency overnight
shelters. Plaintiffs have sued Rick Snyder, the Governor of Michigan, Bill Schuette, the Michigan
Attorney General, and Colonel Kriste Etue, the Director of the Michigan State Police (collectively
the “State Defendants”)1, as well as William Forsyth (“Forsyth”), the Kent County Prosecutor, all
in their official capacities. Plaintiffs filed their complaint in response to the death of Thomas Pauli,
1
Defendants Snyder, Schuette, and Etue have been substituted in place of their predecessors, Jennifer Granholm,
Michael Cox, and Eddie L. W ashington, pursuant to Fed. R. Civ. P. 25(d). (Dkt. # 56.)
a homeless man with a prior CSC conviction who froze to death on the street in Grand Rapids. Pauli
was forced into the freezing cold after an overnight shelter located within 1,000 feet of a school
denied him admission because of his status as a registered sex offender. Like Pauli, the individual
plaintiffs, identified in the pleadings as Jane Poe, John Doe, Robert Roe, Mark Moe, and Larry Loe,
are all subject to SORA as a result of their CSC convictions.
Plaintiffs, the State Defendants, and Forsyth have all filed motions for summary judgment.
For the reasons set forth below, the Court will grant Plaintiffs’ motion in part and deny Defendants’
motions. The Court will issue its declaratory judgment as to the meaning of “reside” as defined in
the Student Safety Zone provisions of SORA, but will deny injunctive relief.
I. BACKGROUND
A.
SORA’s Registration and Residency Provisions
Pursuant to SORA, individuals who have been convicted of certain listed sexually-related
offenses are required to comply with the Act’s registration and reporting requirements. M.C.L. §§
28.723-25. When registering, the offender must provide, among other things, his or her address and
a summary of convictions for the listed offenses. M.C.L. § 27.727(a) & (b). In addition to
registering, an offender is required to periodically report to the local law enforcement agency “for
verification of domicile or residence,” and to notify the local law enforcement agency within 10 days
after the offender changes his or her residence or domicile. M.C.L. §§ 29.725(1), 29.725a(4).
An individual subject to SORA must also comply with the “Student Safety Zones”
provisions, which were incorporated into SORA effective June 1, 2006. M.C.L. §§ 28.733-28.736.
In particular, subject to certain exceptions not relevant here, a registered sex offender “shall not
reside within a student safety zone.” M.C.L. § 28.735(1). SORA defines a “student safety zone”
as “the area that lies 1,000 feet or less from school property.” M.C.L. § 28.733(f). The Student
Safety Zone provisions of SORA do not define the term “reside” as used in M.C.L. § 28.735(1). A
2
registered sex offender who violates § 28.735(1) is subject to criminal liability, with the first offense
being a misdemeanor punishable by not more than one year imprisonment and subsequent offenses
being a felony punishable by not more than two years imprisonment. M.C.L. § 28.735(2). These
provisions are the root of the instant case.
All parties in this case agree that the definition of “residence” in SORA’s registration
requirements cannot be the same as “reside” in the Student Safety Zone provisions of SORA.
Considering the breadth of Michigan Supreme Court’s scope of “residence” in People v. Dowdy,
489 Mich. 373, 802 N.W.2d 239 (2011) and M.C.L. § 28.722(g), the definition in Dowdy and the
code would virtually amount to banishment.
B.
The Plaintiffs
Plaintiff Mel Trotter Ministries is a non-profit, charitable organization that provides various
services to homeless persons in Grand Rapids, including an overnight shelter for men. (Merchut
Aff. ¶ 1.)2 Mel Trotter Ministries is located within 1,000 feet of a school. Men who sleep at Mel
Trotter must arrive by 7 p.m. in the evening and depart the facility by 7 a.m. the next morning. (Id.
¶ 7.) Homeless men who stay overnight at Mel Trotter are permitted to bring a limited number of
personal possessions with them to the shelter in a plastic bag or small backpack, but they must take
their property with them when they leave the next morning. (Id. ¶ 9.) There is no limit on the
number of nights men may stay at Mel Trotter, but there is also no guarantee that they will be able
to stay there on any given night because beds are assigned on a first-come/first-served basis and
admission can be denied for lack of room or other reasons. (Id. ¶ 11.) Until recently Mel Trotter
had believed that registered sex offenders could not stay overnight at its shelter because of the
Student Safety Zone legislation. Mel Trotter personnel thus generally denied admission to homeless
2
Unless otherwise noted, all exhibits are attached to the individual Plaintiffs’ motion for summary judgment.
(Dkt. #59.)
3
individuals if they were aware that such individuals were subject to sex offender registration. (Id.
¶ 4.)
Plaintiff Degage Ministries is a non-profit, charitable organization that provides services to
homeless persons in Grand Rapids, including an overnight drop-in center for women. Degage
Ministries’ facility is located within 1,000 feet of a school. (Palmerlee Aff. ¶¶ 1, 3.) The drop-in
center is available for overnight stays from 8 p.m. to 8 a.m. (Id. ¶ 7.) Like Mel Trotter, women who
sleep overnight are permitted to bring a limited number of personal items, but they must take their
belongings with them when they leave the next morning. (Id. ¶ 9.) Unlike Mel Trotter, Degage
Ministries rents lockers to homeless men and women, although space is limited. Thus, some
individuals who sleep overnight may not have locker space, while some individuals who have rented
lockers may sleep on the street or at another agency. (Id. ¶¶ 10-11.) There is no limit on the number
of nights a woman may stay, but room is limited and there is no guarantee that space will be
available on any particular night. (Id. ¶ 12.) Until recently, Degage had believed that sex offender
registrants could not stay at its shelter and thus denied such persons admission if their sex offender
status was known. (Id. ¶ 4.)
Plaintiffs Poe, Doe, Roe, Moe and Loe each has a prior conviction that subjects him or her
to the requirements of SORA, including the prohibition of residing within 1,000 feet of a school.
They are now, or have been, homeless and have previously used the emergency shelter services
offered by Mel Trotter, Degage Ministries, and/or Guiding Light Mission, a shelter that is not a
plaintiff in this case but is located within 1,000 feet of a school.
Jane Poe, who is approximately 23 years old and has mental and emotional impairments, was
convicted of a misdemeanor CSC charge when she was 20 years old. She is not able to hold a job
and has no money to pay for a place to stay. (Poe Aff. ¶¶ 3-4.) Poe states that she has been raped
and beaten up in the past and is afraid to be on the streets. (Id. ¶ 5.) Poe stays at different places–
4
including with friends, at Degage Ministries, and on the street.” (Id.) Poe is concerned that if she
cannot stay at a shelter, she may have no place to go and could suffer the same fate as Mr. Pauli.
(Id. ¶¶ 14-15.)
John Doe was convicted of a sex offense approximately 20 years ago. Doe is currently
homeless and in the past has stayed in various shelters and with friends. (Doe Aff. ¶¶ 4-5.) Doe
rents a locker at Degage Ministries but does not stay there. In August 2009, the Grand Rapids Police
told Doe that he could not use Guiding Light Ministries as his registration address because it was
within 1,000 feet of a school. (2d Doe Aff. ¶ 6.) After seeking legal advice, Doe sought to register
as homeless, but the police told him that he had to give an address and that the address could not be
a shelter address as they are all located within 1,000 feet of a school (Id. ¶¶ 7-8.) Doe then moved
to Ann Arbor to stay in a shelter that was located outside a school safety zone. When Doe returned
to Grand Rapids for his belongings, however, he was arrested and prosecuted for failing to register.
(Id. ¶ 10.) Although Doe’s counsel advised Doe that he had a good defense, Doe chose to plead
guilty because he would have had to remain in jail until the case went to trial and he could not have
afforded bond. (Id. ¶¶ 12, 14-16.) Given this prosecution, Doe is afraid of being prosecuted for
sleeping in a homeless shelter without a ruling that it is legal for him to do so. (Id. ¶ 20.)
Robert Roe was convicted of fourth degree CSC in 2001. He had been staying at the Battle
Creek Veterans Administration Home but had to leave because he was on the sex offender registry.
(Roe Aff. ¶ 6.) Roe moved to Grand Rapids in 2009 to find work. He initially stayed at Guiding
Light Mission but left in December 2009 after the police told him that he would be prosecuted if he
continued to sleep there. (Id. ¶¶ 7, 10.) Roe ended up renting a room for $225 per month, which
is almost all of the $270 in disability benefits he receives each month. (Id. ¶ 11.) Roe is concerned
about becoming homeless again if he cannot pay his rent and believes that there is a very real
probability that he will end up homeless again. (Id. ¶¶ 12-13; 2d Roe Aff. ¶ 7.)
5
Larry Loe, who was 23 years old at the time he signed his first affidavit, was convicted of
third degree CSC in 2006, when he was age 19. (Loe Aff. ¶¶ 2, 3.) Loe is currently homeless and
has been sleeping at Guiding Light Mission. (Id. ¶ 6.) Loe attempted to register with the Grand
Rapids Police Department using Guiding Light Mission’s address. He was advised that he could
not use that address and that he would be prosecuted if he continued to use Guiding Light Mission
after April 7, 2010. (Id. ¶ 6.) Loe had abdominal surgery in March 2010. Following his release
from the hospital, Loe obtained assistance from a social services agency to ensure that he could
continue to stay at Guiding Light Mission while he recovered. The agency referred Loe to Legal
Aid of Western Michigan. (Id. ¶ 9.) His attorney wrote to the prosecutor, Forsyth, asking that Loe
be allowed to continue sleeping at Guiding Light Mission, but Forsyth declined to give permission,
stating that “absent a change in the law or the issuance of an injunction, I am not willing to allow
[Loe] to violate the law by continuing to sleep at Guiding Light Mission.” (Id. ¶ 10; letter of 3/31/10
from Aukerman to Forsyth; letter of 4/5/10 from Forsyth to Aukerman.) Loe apparently continues
to use the shelters, but is fearful that he will be prosecuted. (Loe Aff. ¶ 12; 2d Loe Aff. ¶ 8.) Loe
fears that if the shelters learn that he is on the sex offenders registry, they will not allow him to stay
there, leaving him nowhere else to stay. (2d Loe Aff. ¶¶ 7, 8.)
C.
Procedural History
In November 2009, Plaintiffs, various homeless advocacy organizations, and the Grand
Rapids Police Department requested a declaratory ruling from the Michigan State Police as to
whether SORA’s residency restrictions apply to homeless registrants staying at overnight emergency
shelters, but the Michigan State Police declined to issue a ruling. Thereafter, Plaintiffs filed a
complaint in the Ingham County Circuit Court alleging three claims which sought: (1) a declaration
that registered sex offenders accessing overnight shelters do not “reside” at the shelter for purposes
of SORA’s residency restrictions; and (2) alternate declarations that the Student Safety Zone
6
Provisions violate both federal and state constitutional prohibitions on cruel and/or unusual
punishment and ex post facto punishment if the Student Safety Zone Provisions are interpreted to
preclude homeless sex offenders from accessing overnight shelters. Plaintiffs also requested
injunctive relief. Defendants removed the case to this Court on the basis of federal question
jurisdiction. On June 1, 2010, this Court denied Plaintiffs’ motion to remand the state law claims
to state court. Plaintiffs then filed a motion for preliminary injunction. Although the Court held a
hearing, it did not decide the motion. Instead, on November 23, 2010, the Court entered a stipulated
order staying the proceedings pending a decision by the Michigan Supreme Court in Dowdy. The
Michigan Supreme Court has decided Dowdy, but its decision does not resolve this case. Therefore,
the parties have moved for summary judgment.
II. DISCUSSION
In their motion for summary judgment Plaintiffs request a declaratory judgment that
individuals subject to SORA’s registration and reporting requirements may sleep overnight in, or
spend multiple nights in, homeless shelters or drop-in centers located within 1,000 feet of a school
without violating SORA’s residency restrictions. Plaintiffs also request a permanent injunction
barring enforcement of SORA’s residency restrictions with regard to their use or operation of
overnight shelters. The State Defendants argue that they are entitled to summary judgment because
Plaintiffs lack standing and their claims are not ripe. All Defendants contend that SORA’s residency
restrictions do not constitute punishment under the United States Constitution or the Michigan
Constitution and thus constitute neither cruel and/or unusual punishment nor ex post facto
punishment. Finally, Defendant Forsyth argues that he should be dismissed because, as a county
prosecutor, he is effectively an agent of the state and thus, is not a necessary party given that he will
be bound by judgment issued against the State Defendants.
7
A.
Justiciability Requirements
1.
Individual Plaintiffs
Standing
The State Defendants argue that the individual Plaintiffs’ claims must be dismissed because
Plaintiffs lack Article III standing.3 Defendants contend that Plaintiffs have failed to show through
their affidavits and other materials a well-ground fear of prosecution under SORA. Defendants also
contend that Plaintiffs’ present circumstances fail to show actual present harm or a substantial
possibility of future harm.
Pursuant to Article III of the United States Constitution, federal courts have the power to
hear “cases” or “controversies.” See Fieger v. Mich. Supreme Ct., 553 F.3d 955, 961 (6th Cir.
2009). The “case-or-controversy limitation is crucial in maintaining the tripartite allocation of
power set forth in the Constitution.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S. Ct.
1854, 1861 (2006) (internal quotation marks and citations omitted). Standing is one of several
principles used to ensure compliance with the case or controversy requirement. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992). “Standing is the ‘threshold question
in every federal case.’” Grendell v. Ohio Supreme Ct., 252 F.3d 828, 832 (6th Cir. 2001) (quoting
Coyne v. Am. Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999)). To satisfy the standing requirement,
“a plaintiff in federal court must allege such a personal stake in the outcome of the controversy as
to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial
powers on his behalf.” Greater Cincinnati Coal. for the Homeless v. City of Cincinnati, 56 F.3d
3
Defendants do not argue that Plaintiffs fail to satisfy recognized prudential limitations on standing. Recognized
prudential limitations require that the Plaintiff must suffer the type of injury that the constitutional provision protects.
See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 475, 102 S. Ct.
752, 760(1982). There is no question that the individual Plaintiffs, who are or have been homeless, satisfy this
requirement.
8
710, 715 (6th Cir. 1995) (internal quotation marks and citations omitted). The Supreme Court has
established the following test for Article III standing:
a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the defendant; and (3) it is likely,
as opposed to merely speculative, that the injury will be redressed by a favorable
decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81, 120 S. Ct. 693, 704
(2000) (citing Lujan, 504 U.S. at 560-61, 112 S. Ct. at 2136).
The State Defendants argue that Plaintiffs lack standing because they fail to allege a concrete
injury that this Court can redress. They point out that some Plaintiffs, including Roe and Doe, are
no longer in need of emergency overnight shelter assistance in the Grand Rapids area because they
no longer reside in Grand Rapids or have found more permanent housing located more than 1,000
feet from a school. The State Defendants also note that Loe, while presently homeless in Grand
Rapids, indicates that he stays at Guiding Light Mission, which is not a plaintiff in this case. The
State Defendants further contend that Plaintiffs fail to show an injury that is actual or imminent
because none of them has been arrested or prosecuted for violating the residency restrictions, and
Plaintiffs’ evidence of threatened enforcement relates to violations of SORA’s registration
requirements rather than its residency restrictions.
Plaintiffs have shown a significant possibility of future harm that is not merely speculative.
All of the individual Plaintiffs have shown that they are currently using, or have used in the past,
services of an emergency homeless shelter located in a school safety zone. For example, Poe stays
with friends, on the streets, or at Degage Ministries; Loe lives on the streets and has been staying
at Guiding Light Mission–an emergency shelter that operates in the same manner as Mel Trotter and
Degage Ministries. (Roe Aff. ¶ 8.) Even though some Plaintiffs have found more permanent
housing, it is likely that Plaintiffs will need the services of an emergency overnight shelter in the
9
future. Unlike the plaintiffs in Defenders of Wildlife, who had no immediate intentions to return to
places they had once visited and could not easily make such trips to those distant places without
some future planning, Defenders of Wildlife, 504 U.S. at 563-64, 112 S. Ct. at 2138, Plaintiffs in the
instant case cannot plan their need for emergency shelter; one does not plan to be homeless.
Moreover, given the nature of homelessness, (see 2d Palmerlee Aff. ¶ 11 (noting that “homeless
individuals vary greatly in how, when and under what circumstances they utilize emergency shelter
services”)), Plaintiffs’ future need for emergency shelter is not speculative; in spite of global
warming, Michigan still has cold winters. Plaintiffs have also shown that because of the uncertainty
regarding the application of SORA’s residency restrictions to emergency homeless shelters, they
face the impossible choice of staying at a shelter and risking prosecution or sleeping on the streets,
where they face physical harm or abuse or, as in the case of Mr. Pauli, death from freezing
temperatures. These are the quintessential circumstances for which declaratory relief is intended
– “where the plaintiff is put to the Hobson’s choice of giving up an intended course of conduct
which he believes he is entitled to undertake or facing possible severe civil or criminal consequences
if he does undertake it.” Okpalobi v. Foster, 244 F.3d 405, 435 (5th Cir. 2001) (internal quotations
omitted).
The fact that no Plaintiff or any other person has been arrested or prosecuted for a residency
violation arising from the use of an emergency overnight shelter does not deprive Plaintiffs of
standing. Instead, as the Supreme Court has made clear, a credible threat of prosecution is enough:
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, 99 S. Ct. 2301, 2309 (1979)
(quoting Doe v. Bolton, 410 U.S. 179, 188, 93 S. Ct. 739, 745 (1973)); see also Medimmune, Inc.
10
v. Genentech, Inc., 549 U.S. 118, 128-29, 127 S. Ct. 764, 772 (2007) (“Our analysis must begin with
the recognition that, where threatened action by government is concerned, we do not require a
plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat – for
example, the constitutionality of a law threatened to be enforced.” (footnote omitted)). As the First
Circuit has observed: “A credible threat of imminent prosecution can injure the threatened party by
putting her between a rock and a hard place–absent the availability of preenforcement review, she
must either forego possibly lawful activity because of her well-founded fear of prosecution, or
willfully violate the statute, thereby subjecting herself to criminal prosecution and punishment.”
Navegar, Inc. v. United States, 103 F.3d 994, 998 (1st Cir. 1997) (citing Babbitt, supra); see also
Gordon v. Bowles, 153 F.2d 614, 616 (Emer. Ct. App. 1946) (“The complainant need only show that
his position is jeopardized by the statute, regulation or order, and thereupon the court will afford
relief for any uncertainties with respect to this rights.”). Here, Plaintiffs have demonstrated a
credible threat of prosecution. For example, the Grand Rapids Police Department advised Roe that
he would be arrested if he continued to stay at a shelter. (2d Roe Aff. ¶¶ 3-6.) Moreover, at least
two Plaintiffs have received written warnings that charges would be sought “for a residency
violation of the Sex Offender – School Safety Zone” if they failed to stop using homeless shelters.
Although Defendants claim that these warnings were issued because Plaintiffs registered a
temporary shelter as their address, not because they used the shelter’s temporary services, the
warnings at least suggest that usage of a shelter would result in a residency violation. Finally, Loe’s
counsel sought assurances from Forsyth that Loe would not be prosecuted if he continued to sleep
at Guiding Light Mission while he was recovering from his surgery, but Forsyth was unwilling to
give such assurances, stating that he was “not willing to allow [Loe] to violate the law by continuing
to sleep at the Guiding Light Mission.” Such a statement suffices to show actual present harm and
a significant possibility of future harm arising from the possibility of criminal prosecution.
11
Also pertinent here is the fact that Defendants have never disavowed enforcement of SORA’s
residency restrictions to persons who utilize overnight emergency shelters on a night-by-night basis.
See, e.g., Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393, 108 S. Ct. 636, 643 (1988) (“We are
not troubled by the pre-enforcement nature of this suit. The State has not suggested that the newly
enacted law will not be enforced, and we see no reason to assume otherwise.”); Hayes v. City of
Urbana, 104 F.3d 102, 103-04 (7th Cir. 1997) (noting that “[t]he City Attorney has not announced
that the amended ordinance is a dead letter, never to be enforced,” and that an equivocal affirmation
of non-prosecution fails to deprive a plaintiff of Article III standing). Here, while Defendants have
made numerous statements in both their briefs and at oral argument tending to suggest that they
would not enforce SORA’s residency restrictions against Plaintiffs for using overnight shelters,
these equivocal statements cannot be accepted as a disavowal; “the government’s disavowal must
be more than a mere litigation position.” Lopez v. Candaele, 630 F.3d 775, 788 (9th Cir. 2010).
Next, Plaintiffs must show that the harm is traceable to Defendants. Defendants contend that
there is no actual enforcement of SORA originating from the Governor, the Attorney General, or
the Michigan State Police. Each Defendant, however, has some responsibility for the enforcement
of Michigan’s laws. Defendant Forsyth, as the Kent County Prosecutor, is responsible for
prosecuting violations of Michigan laws, including the provisions of SORA. See McNeilus Truck
& Mfg., Inc. v. Ohio , 226 F.3d 429, 437 (6th Cir. 2000) (“Where there is an imminent threat of
enforcement, the Attorney General and all county attorneys are proper defendants.”) Defendant
Etue, as the Director of the Michigan State Police, is responsible for the activities of the Michigan
State Police, which include maintaining the sex offender registry, registering offenders, and
promulgating rules on SORA and guidelines for registration of the homeless. Plaintiffs have also
shown that the Michigan State Police trains law enforcement officers regarding the proper
enforcement of SORA. The Attorney General is responsible for enforcement of Michigan’s laws
12
and is also a proper defendant. Id. Similarly, Michigan’s Governor is responsible for enforcing
Michigan’s laws. Mich. Const. Art. 5, § 8. Given this general responsibility, the Governor has
sufficient connection with the enforcement of SORA that he is a proper Defendant in this case. See
Allied Artists Picture Corp. v. Rhodes, 679 F.2d 656, 665 n.5 (6th Cir. 1982).
Finally, the asserted injury will be redressed by relief from this Court. “The real value of
the judicial pronouncement – what makes it a proper judicial resolution of a ‘case or controversy’
rather than an advisory opinion–is in the settling of some dispute which affects the behavior of the
defendant towards the plaintiff.” Hewitt v. Helms, 482 U.S. 755, 761, 107 S. Ct. 2672 (1987). A
judicial resolution in this case would meet this requirement by allowing Plaintiffs to sleep at
homeless shelters without risking prosecution and without risking death or injury by sleeping on the
streets in order to avoid prosecution.4
Ripeness
Defendants also argue that because Plaintiffs have not suffered the adverse consequences that
they fear, and may never suffer prosecution, their claims are not ripe and are merely speculative.
The ripeness doctrine “exists ‘to ensure that courts decide only existing, substantial controversies,
not hypothetical questions or possibilities.’” Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville
& Davidson County, 274 F.3d 377, 399 (6th Cir. 2001) (quoting Dixie Fuel Co. v. Comm’r of Soc.
Sec., 171 F.3d 1052, 1057 (6th Cir. 1999)). The ripeness doctrine is designed to prevent courts from
premature adjudication, or entangling themselves in abstract disagreements. Ky. Press Ass’n v.
4
Defendants do not address standing under Michigan law for Plaintiffs’ statutory interpretation claim, which
is a state law claim. W hen a federal court exercises jurisdiction over a state law claim, a plaintiff must meet standing
requirements under both Article III of the constitution and the applicable state law. See Mid-Hudson Catskill Migrant
Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 173 (2d Cir. 2005); c.f., Aarti Hospitality, LLC v. City of Grove City,
350 F. App’x 1,6 (6th Cir. 2009). Nonetheless, because Michigan’s standing requirements are more liberal than Article
III’s standing requirements, a finding that Plaintiffs meet Article III standing requirements necessarily means that they
have standing under Michigan law . See Lansing Schs. Educ. Ass’n v. Lansing Bd. of Educ., 487 Mich. 349, 362, 792
N.W .2d 686, 694 (2010) (stating that “strictly interpreting the judicial power of Michigan courts to be identical to the
federal court’s judicial power does not reflect the broader power held by state courts”).
13
Kentucky, 454 F.3d 505, 509 (6th Cir. 2006). To determine whether a claim is ripe, a court must ask
two questions: “(1) is the claim ‘fit[] . . . for judicial decision’ in the sense that it arises in a concrete
and factual context and concerns a dispute that is likely to come to pass? and (2) what is ‘the
hardship to the parties of withholding court consideration?” Warshak v. United States, 532 F.3d
521, 525 (6th Cir. 2008) (en banc).
Plaintiffs have shown that their claims arise in a concrete factual setting because they have
already felt the effects of the statute. All individual Plaintiffs are sex offender registrants subject
to SORA’s residency restrictions and all Plaintiffs have sought overnight lodging from homeless
shelters. Some Plaintiffs have stopped staying in homeless shelters after being advised that they
would be prosecuted if they continued to do so. And, several Plaintiffs have indicated that they will
be forced to stay on the streets in order to avoid prosecution. The hardship of delay to Plaintiffs,
given their circumstances, needs no explication. Moreover, the present circumstances are entirely
consistent with the remedy of declaratory relief. As the Sixth Circuit has explained:
"The two principal criteria guiding the policy in favor of rendering declaratory
judgments are (1) when the judgment will serve a useful purpose in clarifying and
settling the legal relations in issue, and (2) when it will terminate and afford relief
from the uncertainty, insecurity, and controversy giving rise to the proceeding. It
follows that when neither of these results can be accomplished, the court should
decline to render the declaration prayed."
Grand Trunk W. R.R. Co. v. Consol. Rail Corp., 746 F.2d 323, 326 (quoting E. Borchard,
Declaratory Judgments 299 (2d ed. 1941)). A ruling here will clarify the law for both Plaintiffs and
Defendants and afford relief for Plaintiffs from the uncertainty giving rise to the
proceeding–whether, as registered sex offenders, they may access overnight shelters.
2.
Organizational Plaintiffs
The State Defendants further argue that Mel Trotter and Degage Ministries lack standing
because SORA does not apply to them and they are not subject to criminal prosecution. The Court
14
need not address Defendant’s standing arguments, however, because only one plaintiff need have
standing. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 299 n.11, 99 S. Ct. 2301,
2309 n.11 (1979); see also Sch. Dist. of City of Pontiac v. Sec’y of the United States Dep’t of Educ.,
584 F.3d 253, 261 (6th Cir. 2009) (citing Clinton v. City of N.Y., 524 U.S. 417, 431 n.19, 118 S. Ct.
2091 (1998)). Regardless, the organizational Plaintiffs do have standing because SORA has
“perceptibly impaired” their ability to accomplish their missions of providing overnight shelter to
homeless persons, which “constitutes far more than simply a setback to [their] abstract social
interests.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S. Ct. 1114, 1124 (1982).
B.
Declaratory Judgment
Plaintiffs raise both a statutory interpretation claim and two as-applied constitutional
challenges to SORA’s residential limitations. The Court need not, however, reach the constitutional
issues. It is a fundamental rule of judicial restraint that a court will avoid reaching a constitutional
question if it can decide the issue on a statutory ground. See Olympic Arms v. Buckles, 301 F.3d
384, 388 (6th Cir. 2002) (noting “the basic canon of avoiding constitutional questions where
possible”); A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248, 258 (5th Cir. 2010).
In the instant case, the Court and the parties agree that the issue can be resolved on a statutory
ground.
As previously stated, all parties agree that SORA does not provide a definition of “reside”
for purposes of the residency restriction found in M.C.L. § 28.735 (1). Thus, ordinary rules of
statutory construction may be applied. First, when considering the language of a statute, a court
should accord all non-technical words and phrases their common and ordinary meaning.
McCormick v. Carrier, 487 Mich. 180, 192, 795 N.W.2d 517, 525 (2010). If the term is not defined
in a statute, a court may consult a dictionary as an aid to construction. Id. In addition to the plain
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meaning of words, a court should also consider their “placement and purpose in the statutory
scheme.” Id. Finally, “[i]t is elementary that statutes in pari materia are to be taken together in
ascertaining the intention of the legislature, and that courts will regard all statutes upon the same
general subject-matter as part of one system.” Dearborn Twp. Clerk v. Jones, 335 Mich. 658, 662,
57 N.W.2d 40 (1953).
The Oxford Dictionaries Online defines “reside” as to “have one’s permanent home in a
particular place.” Oxford Dictionaries Online, http://english.oxforddictionaries.com (last visited
Dec. 21, 2011). Similarly, the Merriam-Webster Unabridged Dictionary defines “reside” as “to
dwell permanently or continuously; have a settled abode for a time; have one’s residence or
domicile.” Webster’s Third New Int’l Dictionary Unabridged (2002), http://unabridged.merriamwebster.com (Dec.. 20, 2011). See also Random House Dictionary of the English Language 1638
(2d ed.) (“to dwell permanently or for a considerable time”). In construing the term “reside” in both
contracts and statutes, Michigan courts have considered it connotes living somewhere permanently
or at least for an extended period of time. See Home-Owners Ins. Co. v. Brown, No. 259233, 2006
WL 2085039, at *2 (Mich. Ct. App. July 27, 2006) (“‘reside’ means ‘to dwell permanently or for
a considerable time, live’”); Curry v. Jackson Circuit Court, 151 Mich. App. 754, 758, 391 N.W.2d
476, 478 (1986) (concluding that the term “resides” as used in the Michigan Freedom of Information
Act should be given its legal meaning as “a person’s legal residence”).
Under the ordinary meaning of “reside,” a registrant does not violate SORA’s residency
restrictions by using an emergency overnight shelter under the following conditions: (1) users are
admitted to the shelter in the evening and required to leave in the morning; and (2) users have no
expectation of obtaining a place in the shelter on any given night. Therefore, registrants may sleep
overnight in homeless shelters or drop-in centers located within 1,000 feet of a school, and may
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spend multiple nights in such shelters, so long as the foregoing conditions apply.
In rendering declaratory relief, the Court is mindful that it must exercise its discretion
cautiously. W. Am. Ins. Co. v. Miller, No. 5:09-cv-346-KSF, 2010 WL 1369079, at *2 (E.D. Ky.
Mar. 31, 2010). Too often, unintended consequences arise from broad declarations made by a court
unaware of specific facts. Therefore, the Court has limited its ruling to those circumstances
involved in a registrant’s access to a homeless shelter or drop-in center on a night-to-night basis i.e., the facts presented in the instant case.
C.
Injunctive Relief
Plaintiffs also request a permanent injunction pursuant to Fed. R. Civ. P. 65 against
enforcement of M.C.L. § 28.375 as applied to registrants who use emergency shelter services for
overnight housing. The Declaratory Judgment Act authorizes courts to issue “[f]urther necessary
or proper relief based on a declaratory judgment or decree . . . after reasonable notice and hearing,
against any adverse party whose rights have been determined by such judgment.” 28 U.S.C. § 2201.
A plaintiff seeking a permanent injunction must show that “it has suffered irreparable injury,
there is no adequate remedy at law, ‘that, considering the balance of hardships between the plaintiff
and defendant, a remedy in equity is warranted,’ and that it is in the public’s interest to issue the
injunction.” Audi AG v. D’Amato, 469 F.3d 534, 550 (6th Cir. 2006) (quoting eBay Inc. v.
MercExchange, LLC, 547 U.S. 388, 126 S. Ct. 1837, 1839 (2006)).
Regarding the likelihood of future harm, although Plaintiffs have demonstrated a need for
declaratory relief, the Court has no reason to believe that Defendants will attempt to enforce
SORA’s residency requirements in a manner inconsistent with the Court’s declaratory ruling. In
other words, the Court finds no basis to conclude that having obtained declaratory relief, Plaintiffs
will continue to face a threat of injury. Although Plaintiffs lack an adequate remedy at law for
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future violations, the Court concludes that the risk of future harm is so slight that the lack of an
adequate remedy at law is not enough to warrant injunctive relief. As for the balance of hardships
and the public’s interests, while these factors do favor the requested relief, the Court notes that the
State also has an interest in enforcing its laws. Therefore, the Court concludes that injunctive relief
is not necessary in this particular case at this particular time.
III. CONCLUSION
For the foregoing reasons, the Court will grant Plaintiffs’ motion for summary judgment in
part and deny it in part. The Court will grant Plaintiffs’ request for declaratory relief but deny
Plaintiffs’ request for an injunction. The Court will also deny Defendants’ motions for summary
judgment.
An Order consistent with this Opinion will be entered.
Dated: December 27, 2011
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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