Poe v Snyder

12-27-2011 Michigan:

Poe v Snyder
834 F.Supp.2d 721 (2011)
Amicus Brief MI ACLU & MI Criminal Defense Attys
Plaintiff's Brief Opposing Motion to Dismiss

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 ( Man found in snow had no place to turn ), 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.

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 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 [ 834 F.Supp.2d 726 ] if their sex offender status was known. (Id. ¶ 4.)

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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 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:

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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, 96 L.Ed.2d 654 (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

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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.merriam-webster.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 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.

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.

ORDER AND JUDGMENT
In accordance with the Opinion entered today,

IT IS HEREBY ORDERED that Plaintiffs' Motion For Summary Judgment (docket no. 59) is GRANTED IN PART AND DENIED IN PART. The motion is granted with respect to Plaintiffs' request for declaratory relief but denied with respect to Plaintiffs' request for injunctive relief. Accordingly, pursuant to 28 U.S.C. § 2201, it is declared and adjudged that:
Under the ordinary meaning of "reside," a registered sex offender does not violate M.C.L. § 28.735(1) 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 dropin centers located within 1,000 feet of a school, and may spend multiple nights in such shelters, so long as the foregoing conditions apply.

IT IS FURTHER ORDERED that the State Defendants' Motion For Summary Judgment (docket no. 62) and Defendant Forsyth's Motion For Summary Judgment (docket no. 64) are DENIED.

IT IS FURTHER ORDERED that Plaintiffs' Motion To File Supplemental Brief (docket no. 81) is DISMISSED AS MOOT.

IT IS FURTHER ORDERED that this Court; will retain jurisdiction over this matter to interpret and enforce its meaning and intent and to consider the entry of injunctive relief if that becomes necessary.

Except for retaining jurisdiction as set forth above, this case is closed.

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As resolved by this court, another death like Thomas Pauli, freezing to death in a junk yard, because he cannot get into a shelter due to a RESIDENCY LAW, will be averted. Thank Heavens.

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