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Notes on Does III Lawsuit

The Michigan ACLU’s complaint with its supporting documents can be found at https://www.aclumich.org/en/press-releases/aclu-sues-state-officials-fourth-time-over-unconstitutional-michigan-sex-offender.

Introduction
The Does III  or Does v Whitmer  lawsuit was filed by the ACLU of Michigan arguing that substantial parts of Michigan’s 2021 SORA are unconstitutional and must not be enforced. The suit was filed on Feb. 2, 2022 in Federal District Court.
The suit was filed on behalf of ten plaintiffs, the “Does”, who represent various classes of people subject to registration requirements under the 2021 SORA. The suit first asks that the court certify the case as a class action, applying to all people subject to the 2021 SORA.
Second, the suit asks the court to temporarily stop the state from enforcing unconstitutional parts of the 2021 SORA on the members of the class while the case proceeds. This asks for a preliminary injunction against enforcement of ten provisions of the law.
Finally, the suit asks the court for permanent relief from the same ten unconstitutional provisions of the 2021 SORA. 

Organization of the Complaint
The complaint document is 198 pages long and was filed along with 21 exhibits containing evidence supporting the arguments. There are also two separate documents containing motions, one for class certification and one for preliminary injunction.
The complaint is divided into three major parts. First, it describes the ten “Does”, the plaintiffs in the case. Second, the bulk of the document states the facts of the case, including the history of the law and litigation, the many constitutional problems with the law, and the severe burdens the law places on people subject to registration. Third, it describes the ten types of relief requested, and it formally requests the court to permanently grant the requested relief.

Requests for Relief
Count I
Because SORA 2021 imposes punishment it must not be enforced on people whose offenses were committed before July 1, 2011. SORA 2021 imposes almost all of the punitive burdens of the prior law which were found to be punishments in previous law suits.
Count II
Again because SORA 2021 is punishment, registration terms may not be extended retroactively on people who under prior laws had shorter registration terms.
Count III
People required to register are publicly labeled dangerous sex offenders and this may not be done to people without an individualized review of their dangerousness.
Count IV
Some people who are required to register are given an opportunity to petition to get off the registry, but other people who meet the same qualifications are not, simply because of their tier classification. Tier classifications do not measure a person’s risk of reoffending, so all people should have an opportunity to petition to get off the registry.
Count V
The law compels people on the registry to periodically provide personal information about themselves that is then presented to the public in a form that labels them as dangerous sex offenders. This is compelled speech with which the plaintiffs vehemently disagree, so the law’s reporting requirements are unconstitutional.
Count VI
Retroactively lengthening registration terms on people who entered plea agreements prior to SORA 2021 or under prior versions of SORA is unconstitutional.
Count VII
It is unconstitutional to require people who have not committed sex offenses to register as sex offenders.
Count VIII
Many of the requirements of SORA 2021, including the rules around reporting places of employment, residences, schools attended, nicknames, phone numbers, vehicles, and internet identifiers are vague and not understood by people who must register and by law-enforcement personnel both. Similar requirements in SORA 2011 were ruled unconstitutionally vague and so should be the SORA 2021 requirements.
Count IX
Requiring people to sign the Explanation of Duties saying that they understand the requirements of SORA 2021 is compelled false speech . Therefore this requirement is unconstitutional.
Count X
The requirements in the law for reporting internet identifiers and allowing that information to be made public have a chilling effect on people’s use of the internet, and therefore these requirements are an unconstitutional infringement of the First Amendment.

–John

Michigan Supreme Court Decides Betts 7/27/21

On July 27, 2021 the Michigan Supreme Court decided the case People v. Betts. The court agreed with the federal courts that Michigan’s 2011 Sex Offenders Registration Act (SORA) was punishment and was therefore unconstitutional when applied to people whose crimes were committed before the act went into effect. Betts was convicted of a registry violation in 2012, and this conviction was vacated by the Supreme Court because his CSC conviction was in 1993, before the effective date of the 2011 SORA, April 12. The court found no way to sever the provisions of the law that made it punitive, so the law is null and void as applied retroactively.

This decision has no effect on people whose crimes were committed after the 2011 SORA went into effect. Also, the court explicitly said that it is giving no opinion on the new 2020 SORA. So, until a court decides the constitutionality of this law people with sex offenses should continue to abide by its conditions.

It’s clear that people in the same situation as Betts should expect to receive the same relief, but the court’s decision was only about Betts himself. Others will need to get their own attorneys to help them get their registry violations overturned.

The arguments and conclusions in Betts are very similar to those expected in Does v. Snyder II, for which there still hasn’t been a final order. The benefit of Betts, however, is that it is a state court decision. Federal court decisions are not strictly binding on state courts and vice versa, so it’s good development that both jurisdictions are in agreement on the punitive nature of SORA.

The full opinion can be found at https://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Recent%20Opinions/20-21%20Term%20Opinions/148981.pdf.

—John

New Order in Does II

Federal District Court Judge Robert Cleland issued a new order in the Does II case on June 21, 2021. In this order Cleland again orders the State and the ACLU to work together to draft a final judgement for his approval, a process that was interrupted by Covid. The parties have until July 12 to do this. A more detailed analysis of the order will be forthcoming from the ACLU, but some highlights of the order are:

Nothing in the Does II case will affect the new SORA that went into effect on March 24, 2021. Any questions about the constitutionality of the new law will have to be raised in a new lawsuit.

The order says, “the new version of SORA applies only to registrants’ conduct on or after March 24, 2021”. For events prior to this date the old law, as modified by his earlier rulings on its constitutionality, still applies.

The order reiterates that law enforcement agencies may not charge people for registry violations that occurred during the pandemic.

The full text of the order can be found at https://www.mied.uscourts.gov/PDFFIles/16-13137SORAOpnOrd.pdf.

—John

Registrants as political candidates? YES!!!

We actually had two candidates from Michigan Citizens for Justice run for political office in the August, 2020 primary election. One ran for county prosecutor! He did not win, but was open about his past and ran a credible race, participating strongly in every debate. The other member ran and won as a precinct delegate for his party. We thank both of them for their courage and the desire to make a difference. This is the beginning of change.

One of the candidates wrote, “I encourage everyone of us to run for a Public Office. We Have a voice. We Have a presence. My State House Rep., who sits on the House Judiciary committee, congratulated me on my election. It is a start. I will not let my conviction define who I am or overshadow my life or ambitions. There are 44,000 Registrants in the State. We have Political Power and A Political Voice.”

And the other wrote, “I am so proud to have run this race, our message definitely got out there. Many people were encouraged”.

These two make me feel good about Michigan Citizens for Justice, for one of our goals is to take people who are being demonized and demoralized and empower them, to help them see their inherent goodness and value, to help people rise to their potential.

Kathie

Judge Cleland’s Covid-19 Order and New Bill in State House

by John on April 13, 2020

There have been two recent developments of importance to people on Michigan’s offense registry.

First, the federal judge handling the Does v. Snyder lawsuits has ordered all police and prosecutors to stop enforcing any of the restrictions on registrants of Michigan’s SORA. The order is retroactive to February 20, 2020 and will continue at least until the end of the COVID-19 emergency.

Second, a bill to revise Michigan’s SORA has been introduced in the Michigan State House (HB 5679). This bill if enacted into law would do essentially nothing to correct the constitutionality problems in the current law, and it wouldn’t change the restrictions under which most registrants now live. The ACLU is organizing a campaign to have this bill defeated in the legislature. We all should participate in this campaign to the extent that we can.

Much more information about the latest court order, and the proposed legislation and the campaign to stop it can be found in the web site of the ACLU of Michigan. Start at www.aclumich.org/SORA, and look particularly at the Michigan Registrants and their Families link where there is a video recording of the campaign kickoff. After you’ve watched the video if you would like to volunteer to help, send an email message to intern@aclumich.org.

Judge Cleland’s Final Order

On February 14 United States District Court Judge Robert H. Cleland issued his final order in the Does II  lawsuit, and he gave us essentially everything the ACLU asked for. You can learn all about it at https://www.aclumich.org/en/SORA, where among other things there is a recording of a video conference with Miriam Aukerman explaining the ruling.
A few things stand out at this point:

  • The order is not yet in effect. It will likely take effect in about two and a half months, but until then you should remain compliant with the existing law.
  • The legislature can decide during this waiting period whether they want to accept the order or write a new law. If they pass a new law within the time limit, the judge’s order will no longer be in force. If they don’t pass a new law the judge’s order will limit how the existing law can be enforced.
  • What the order means for you depends on when your offense was, not when you were convicted or incarcerated. People whose offense was before April 12, 2011 will be off the registry completely. People whose offense was on or after this date will remain on the registry but will have fewer restrictions (no school safety zones, no registration of vehicle or internet ids).
  • To help with their lobbying efforts during the waiting period the ACLU wants people who will volunteer to tell their stories to the legislature, and they also want people to tell them what their priorities are regarding a new law. Write them at intern@aclu.org.

Feb. 5, 2020 Does v. Snyder II Hearing

Will there finally be relief for Michigan registrants? It’s been years since the courts in Does v. Snyder I found multiple constitutional problems with Michigan’s sex offender registration law. Yet Michigan state officials have taken no action to revise it. It looks like the next move will be the court’s again. There will be a hearing on February 5 at 2:00 pm in Judge Cleland’s court room, Federal Building and Courthouse, 526 Water Street, 2nd Floor, Port Huron, MI 48060 on the John Doe v. Snyder et al, case number 2:16-cv-13137-RHC-DRG. It will be a hearing on a motion for declaratory and injunctive relief for the ex post facto claim and also a hearing on the vagueness, strict liability, and 1st Amendment issues of Michigan’s sex offender registry law. We don’t expect the judge to rule on this date, but it may be his final hearing on this, and we hope for a decision soon after.

There will be a group of us attending. If you are interested and would like to car pool, please contact one of the support group leaders.

Michigan Ordered to Rewrite SORA

We were expecting this, but now it has happened. Federal District Court Judge Cleland has ordered the state legislature to revise the SORA, and has given a 90 day deadline to get this done. He says that 90 days is reasonable “given that the Does I decision has been final since October 2017”.  You can see the actual order on the ACLU web site.

If the state does not change the law within 90 days, Cleland has ordered that the 2006 and 2011 amendments to SORA cannot be applied ex post facto to the whole class of people required to register. This is the minimum change that he will make to the law, and this in itself will be huge, but, this isn’t the end of his order. He also says that he might find that the 2011 amendments to SORA are not severable from the rest of the SORA, and therefore that the SORA is null and void for anyone whose offense occurred before April 12, 2011. He also reminds us that he decided earlier that a number of registration requirements (residency and work exclusion zones, registration of internet ids and vehicles, etc.) are unconstitutional, and that he might order that these cannot be enforced.

Big news indeed! We can be sure now that big changes to the Michigan SORA will occur before the end of the year. This order is something we should detail in our future lobby visits with legislators.

The Support Groups are Growing

April, 2019 – The Kalamazoo group is successfully transitioning to two new co-leaders. The new leaders have ideas for improving the group. The effect of their ideas was evidenced by the fact that in March, there were 21 attendees — the largest meeting to date. Kalamazoo is also interested in working with the Michigan ACLU to improve Michigan’s sex offense laws.

The Washtenaw group is also growing. In April, there were 32 attendees. Attendance was boosted by a guest speaker, a psychologist. However, numbers are consistently going up. So much so, that there is talk about when it will be necessary to split into two groups.

At the Washtenaw April support group meeting there were people from Traverse City and Port Huron who hope to start similar support groups in those areas. There is definitely a need for these types of groups. Every week we receive enquiries from family members or people forced to register.

ACLU Training Audio Available

Thanks to our musician and audio-engineer member Rich we now have a recording of our February 23, 2019 advocacy training. The training was given by Shelli Weisberg and Tim Poxson of the ACLU of Michigan and is described in a little more detail in a previous blog post. It’s about two hours long, but you don’t have to listen to all of it. So that you can go directly to the parts you want to review, here’s an index giving you starting and ending times of each major segment:

0:00–0:20Skip (Conversation before training)
0:20–6:24Shelli Weisberg’s introduction
6:24–16:50Skip (Participant introductions)
6:24–12:18Tim Poxson’s introduction
12:18–56:45Status of Does cases
56:45–1:24:23Advocacy training
1:24:23–1:39:30Model role play by Shelli, Tim, and Greg
1:39:30–1:48:55Skip (Small group role playing)
1:48:55–2:02:56Evaluations of small groups
2:02:56–2:07:58Next steps