Appeals Court: Amended Michigan Sex Offender Laws Flawed and Unconstitutional

8-26-16 Michigan:

Comment from William Dobbs:

A late summer win! Yesterday a three judge panel (Gilbert Merritt, Alice Batchelder and Bernice Donald) of the US Sixth Circuit Court of Appeals handed down a decision remarkable for what it does, the legal reasoning, and explicit hope for future legal challenges.

Legislators have a habit of imposing new punishments on those already sentenced for sex offenses. The court put a stop to that, declaring the practice “ex post facto” and unconstitutional. Many of Michigan’s 40,000+ registrants will benefit shortly.

Is the registry punishment? Registrants and just about anybody else would say yes. Courts, however, usually say no, viewing the registry as an administrative matter, sidestepping consideration of legal challenges by registrants.

The Sixth Circuit judges took a careful look, got real, and resoundingly declared the registry is punishment—an important holding by a federal circuit court. The 14-page decision ends with tantalizing hope for the future, noting that claims the court did not consider are “far from frivolous and involve matters of great public importance.” The infernal registry is still standing but this is a significant victory for reason and justice.

Decision
Does v. Snyder
US Court of Appeals for the Sixth Circuit, Case Nos. 15-1536/2346/2486

Decision filed Aug. 25, 2016:
http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0207p-06.pdf
Audio of oral argument - Part One--Jan. 27, 2016 .. Part Two--Apr. 27, 2016

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See also:

Court: Michigan's toughened sex offender rules cannot be retroactive by David Eggert

Appeals Court Says Michigan Sex Offender Law Flawed And Not Working by Rick Pluta

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Henry Ford College settles suit with sex offender

See earlier story: Sex offender suing HFCC for kicking him out and Henry Ford Community College Faces Suit After Kicking Sex Offender Out and Sex offender with high GPA wants back into college (Attorney Shaun Godwin)

5-5-15 Michigan:

A convicted sex offender who sued a suburban Detroit college over his dismissal settled the case for $36,000.

An agreement obtained by The Associated Press says the payment came earlier this year from Henry Ford College’s insurer. In exchange, Michael Branch has agreed to stay away from the Dearborn campus.

Branch claimed his rights were violated when the school removed him in 2011, despite good grades in a heating-and-cooling program. But in court filings, Henry Ford said his enrollment was terminated because of parole requirements. Branch had to stay away from minors and child-care facilities.

Henry Ford denied wrongdoing but settled the lawsuit solely for “business reasons.” Branch was convicted of having sex with a 15-year-old girl in 2004. by The Detroit News

Michigan v Juntikka

4-21-15 Michigan:

Michigan v Juntikka

At issue in this case is whether a trial court properly imposed a $100 probation enhancement fee upon defendant under MCL 771.3. Because we conclude that MCL 771.3(2)(d) does not independently authorize trial courts to impose any assessment, and because we conclude that the probation enhancement fee was not statutorily authorized as a cost specifically incurred in defendant’s case, we vacate the portion of the court’s order imposing the probation enhancement fee and remand for further proceedings.

On January 23, 2013, defendant pleaded guilty to one count of failing to register as a sex offender, MCL 28.729. The trial court sentenced defendant to a five-year probationary term and
12 months in the county jail. The court additionally ordered defendant to pay several financial
charges, including a $100 probation enhancement fee.

On August 6, 2013, defendant filed a motion for resentencing, contending, among other things, that the $100 probation enhancement fee was improper because it was an unauthorized assessment. The court denied defendant’s motion, explaining that the probation enhancement fee covered items including “gloves so that the probation agents may test bodily fluids more safely” and “cell phones so that [agents] can quickly respond to issues that may arise.” The trial court concluded that because defendant was on probation, the fee rendered him a potential benefit and so fell within the ambit of MCL 771.3(2)(d).

Judge: Parts of state's sex offender law unconstitutional

see 10-26-15 Bill Would Reinstate Michigan's Ban on Sex Offenders Near Schools. Lawmaker tries to override court decision.

4-7-2015 Michigan:

Doe v Snyder:
(3 Decisions)

A) 9-3-15 JOHN DOE #1-5 and MARY DOE, Plaintiffs, v. RICHARD SNYDER and COL. KRISTE ETUE, Defendants.

B) 3-31-15 JOHN DOES #1-5 and MARY DOE, Plaintiffs, v. RICHARD SNYDER and COL. KRISTE ETUE, Defendants.

C) 3-31-15 JOHN DOES 1-4 and MARY DOE, Plaintiffs, v. RICHARD SNYDER and COL. KRISTE ETUE, Defendants. (Motion in limine Mapping Expert)

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Final Orders from each of the 3 decisions

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A) 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.

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B) For the reasons stated above,

IT IS ORDERED that Plaintiffs' Rule 52 Motion for Judgment on the Papers (Dkt. # 96) is GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that Defendants' Rule 52 Motion for Judgment on the Papers (Dkt. # 97) is GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that the Sex Offender Registration Act, Mich. Comp. Laws §§ 28.721 et seq., shall be construed consistently with this opinion.

IT IS FURTHER ORDERED that SORA's geographic exclusion zones provisions, Mich. Comp. Laws §§ 28.734, 28.735, are declared unconstitutional and their enforcement is enjoined, as applied to Plaintiffs.

IT IS FURTHER ORDERED that the requirement "to report in person and notify the registering authority . . . immediately after . . . [t]he individual . . . begins to regularly operate any vehicle," Mich. Comp. Laws § 28.725(1)(g), is declared unconstitutional and its enforcement is enjoined, as applied to Plaintiffs.

IT IS FURTHER ORDERED that the requirement "to report in person and notify the registering authority . . . immediately after . . . [t]he individual establishes any electronic mail or instant message address, or any other designations used in internet communications or postings," Mich. Comp. Laws § 28.725(1)(f), is declared unconstitutional and its enforcement is enjoined.

IT IS FURTHER ORDERED that the requirement to report "[a]ll telephone numbers . . . routinely used by the individual," Mich. Comp. Laws § 28.727(1)(h), is declared unconstitutional and its enforcement is enjoined.

IT IS FURTHER ORDERED that the requirement to report "[a]ll electronic mail addresses and instant message addresses . . . routinely used by the individual," Mich. Comp. Laws § 28.727(1)(I), is declared unconstitutional and its enforcement is enjoined.

IT IS FURTHER ORDERED that the requirement to report "[t]he license plate number, registration number, and description of any motor vehicle, aircraft, or vessel . . . regularly operated by the individual," Mich. Comp. Laws § 28.727(1)(j), is declared unconstitutional and its enforcement is enjoined, as applied to Plaintiffs.

IT IS FURTHER ORDERED that the court reserves judgment on whether Mich. Comp. Laws § 28.725a(7) is unconstitutional as applied to John Doe #4 and will request additional briefing in a forthcoming order.

IT IS FURTHER ORDERED that the court reserves judgment on 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 and will request additional briefing in a forthcoming order.

IT IS FURTHER ORDERED that the court reserves judgment on Plaintiffs' request for costs and attorneys' fees pursuant to 42 U.S.C. § 1988 and Mich. Const. Art. 9, § 32, pending the resolution of the remaining issues in this case.

IT IS FURTHER ORDERED that judgment is entered in Defendants favor in all other respects.

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C) The court declines to exclude the answers of law enforcement that Poxson and Granzotto collected.
III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Defendants' motion in limine (Dkt. #87) is DENIED.

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News Article:

Michigan's Sex Offender Registry law is so vague that parts of it are unconstitutional, including the requirement that offenders stay at least 1,000 feet from schools, a federal judge has ruled.

U.S. District Judge Robert Cleland, in a 72-page ruling, struck down several reporting requirements of the 1994 law, which has been amended several times by state lawmakers to make requirements stricter.

Regarding the 1,000-foot school safety zone, he said offenders are left to guess where the zones were and are not provided with enough information from the state to abide by the restriction.

And he struck down several other requirements, including a mandate that offenders report in person new e-mail and instant messaging addresses and notify authorities of all telephone numbers "routinely used by the individual."

The vagueness of the law "leaves law enforcement without adequate guidance to enforce the law and leaves registrants of ordinary intelligence unable to determine when the reporting requirements are triggered," Cleland wrote in his ruling.

The lawsuit was filed in 2012 by the American Civil Liberties Union of Michigan against Gov. Rick Snyder and Michigan State Police Director Kriste Etue, on behalf of six Michigan residents who are convicted sex offenders required to register. The University of Michigan Clinical Law Program also participated.

The residents argued that the law, and its many amendments, are impossible to follow. Regarding the 1,000-foot rule, they said, "the zones are not physically marked and registrants are not provided with maps demarking the boundaries."

Benton Harbor man to remain on sex offender list

2-24-2015 Michigan:

A Benton Harbor man convicted of having sex with an underage girl has lost an appeal of a lower court's decision requiring him to remain on the state sex offender registry.

Evans Costner III was more than four years older than the victim in the 2009 case, and therefore not entitled to have his name removed from the registry, the state Court of Appeals said.

A provision in state law allows offenders in so-called "Romeo and Juliet" cases, where young people engage in sex by consent, to petition a court for removal from the registry.

For the petition to be granted, the victim must be at least 13 and under 16, and the offender not more than four years older than the victim.

Costner was 18 at the time of the offense, four years and 23 days older than the 14-year-old girl, according to an appeals court opinion released Feb. 19.

In affirming a Berrien County Trial Court decision denying Costner's petition, the appeals court also said that requiring him to register as a sex offender is not cruel and unusual punishment.

In re Oliver

3-8-1948 Michigan:

In re Oliver

A Michigan circuit judge summarily sent the petitioner to jail for contempt of court. We must determine whether he was denied the procedural due process guaranteed by the Fourteenth Amendment.

In obedience to a subpoena the petitioner appeared as a witness before a Michigan circuit judge who was then conducting, in accordance with Michigan law, a "one-man grand jury" investigation into alleged gambling and official corruption. The investigation presumably took place in the judge's chambers, though that is not certain.

Two other circuit judges were present in an advisory capacity.1 A prosecutor may have been present. A stenographer was most likely there. The record does not show what other members, if any, of the judge's investigatorial staff participated in the proceedings. It is certain, however, that the public was excluded — the questioning was secret in accordance with the traditional grand jury method.

After petitioner had given certain testimony, the judge-grand jury, still in secret session, told petitioner that neither he nor his advisors believed petitioner's story — that it did not "jell." This belief of the judge-grand jury was not based entirely on what the petitioner had testified. As will later be seen, it rested in part on beliefs or suspicions of the judge-jury derived from the testimony of at least one other witness who had previously given evidence in secret. Petitioner had not been present when that witness testified and so far as appears was not even aware that he had testified. Based on its beliefs thus formed — that petitioner's story did not "jell" — the judge-grand jury immediately charged him with contempt, immediately convicted him, and immediately sentenced him to sixty days in jail. Under these circumstances of haste and secrecy, petitioner, of course, had no chance to enjoy the benefits of counsel, no chance to prepare his defense, and no opportunity either to cross-examine the other grand jury witness or to summon witnesses to refute the charge against him.

Three days later a lawyer filed on petitioner's behalf in the Michigan Supreme Court the petition for habeas corpus now under consideration. It alleged among other things that the petitioner's attorney had not been allowed to confer with him and that, to the best of the attorney's knowledge, the petitioner was not held in jail under any judgment, decree or execution, and was "not confined by virtue of any legal commitment directed to the sheriff as required by law." An order was then entered signed by the circuit judge that he had while "sitting as a One-Man Grand Jury" convicted the petitioner of contempt of court because petitioner had testified "evasively" and had given "contradictory answers" to questions. The order directed that petitioner "be confined in the County Jail . . . for a period of sixty (60) days or until such time as he . . . shall appear and answer the questions heretofore propounded to him by this Court. . . ."

The Supreme Court of Michigan, on grounds detailed in the companion case of In re Hartley, 317 Mich. 441, 27 N.W.2d 48,2 rejected petitioner's contention that the summary manner in which he had been sentenced to jail in the secrecy of the grand jury chamber had deprived him of his liberty without affording him the kind of notice, opportunity to defend himself, and trial which the due process clause of the Fourteenth Amendment requires.3 In re Oliver, 318 Mich. 7, 27 N.W.2d 323. We granted certiorari to consider these procedural due process questions.

... ... ...

It is "the law of the land" that no man's life, liberty or property be forfeited as a punishment until there has been a charge fairly made and fairly tried in a public tribunal. See Chambers v. Florida, 309 U.S. 227, 236-237. The petitioner was convicted without that kind of trial.

The judgment of the Supreme Court of Michigan is reversed and the cause is remanded to it for disposition not inconsistent with this opinion. Case is reversed and remanded.

Sex Offender Registry Spat Bends to Public Access

10-29-2014 Michigan:

People v Temelkoski

A sex offender who no longer has a conviction on his record after successfully completing probation must still abide by registry requirements, a Michigan appeals court ruled.

Boban Temelkoski was 19 in 1994 when he was charged with second-degree criminal sexual conduct related to his kissing and groping of a 12-year-old girl.

Temelkoski pleaded guilty and served three years of probation under the Holmes Youthful Trainee Act (HYTA), at which point the case against him was dismissed.

Though Temelkoski does not have a conviction on his record, Michigan law still requires him to register as a sex offender for life under the Sex Offender Registration Act (SORA).

He sought removal from the sex-offender registry in 2012 based on the purported "cruel or unusual" nature of punishing him of something not memorialized by a conviction.

Since SORA now contains a "consent exception" for youthful offenders in a so-called "Romeo and Juliet relationship," Temelkoski also characterized the sexual encounter between him and the 12-year-old as consensual.

Fullmer v Michigan Dep't of State Police

This case bounced around Michigan courts, first declaring registration unconstitutional, then because of a US Supreme court decision ((Connecticut Dept Of Public Safety V Doe)) the 2002 Michigan decision below was overturned. Below is access to all relevant decision at each step.

2-25-2004 Michigan:

Fullmer v Michigan Dep't of State Police

This appeal arises from a successful challenge to the constitutionality of the public registry provision of Michigan's Sex Offenders Registration Act, Mich. Comp. Laws §§ 28.721-28.732 (2003), which was held to be invalid by the district court in a judgment that included an injunction against its immediate enforcement.

Because we conclude that the act creating the registry meets the due process standards for such programs recently announced by the Supreme Court in Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), we reverse the district court's judgment and vacate the related injunction.

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June 25, 2002:
Fullmer v Michigan Dep't of State Police

On June 3, 2002, the Court entered an order and Declaratory Judgment enjoining Defendants' further enforcement of Michigan State Police Sex Offenders Registration Act (the "SORA"), M.C.L. §§ 28.721 et seq, until they provide convicted sex offenders adequate procedural safeguards for their constitutionally protected interests.

[Doc. 18 and 19]. On June 10, 2002, Defendants filed a motion to stay this Court's judgment pending appeal to the Sixth Circuit Court of Appeals. [Doc. 21]. Plaintiff has responded [Doc. 25]. For the reasons stated below, the Court DENIES the request for a stay, but MODIFIES its June 3, 2002 injunction and Declaratory Judgment.

Defendants will continue to be enjoined from enforcing the public notification sections of the SORA, M.C.L. § 28.728(2), M.C.L. § 28.730(2) and (3). However, the injunction on the other provisions of the SORA is modified.

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June 3, 2002:
Fullmer v Michigan Dep't of State Police

INTRODUCTION

This matter is before the Court on the latest challenge to the Michigan Sex Offenders Registration Act, MCLA § 28.721 et seq, ("SORA"). Plaintiff, an individual convicted of an offense that requires registration as a "sexual offender" pursuant to the SORA, argues that the statute violates constitutionally protected procedural due process.

Defendants are the Michigan State Police, the government entity charged with maintaining the registry, and Colonel Michael D. Robinson (the "Director"), in his official capacity as Director of the department.1 Defendants contend that Plaintiff's liberty interests are not implicated by the required registration and the public dissemination of registry information; therefore, no procedural due process safeguards are mandated. Further, Defendants assert that the issues raised by Plaintiff have all been considered and decided by other courts in this district and circuit, or that the outcome can reasonably be predicted against him based on these prior rulings.

While these prior decisions have upheld the notification provisions of the SORA against due process challenges, none addressed the specific argument made by Plaintiff here: namely, that the reputation damage resulting from registration as a sex offender, coupled with the ongoing legal obligations of registration and the attendant criminal penalties for failure to fulfill the obligations of registration, alter the registrant's legal status, and, therefore, the "stigma plus" test is met and his right to be free from government defamation entitles him to the procedural safeguards under the Due Process clause of the Fourteenth Amendment.2

The Court finds that the Plaintiff has sufficiently demonstrated a liberty interest recognized by the United States Constitution which is deserving of minimal due process protection, because of the damage to reputation as a labeled sex offender, coupled with the burden and duty of continuing registration obligations over a course of years. Because the SORA does not provide notice to registrants or an opportunity to be heard, it is struck down as an unconstitutional denial of due process afforded under the Fourteenth Amendment to the United States Constitution.

People v Haynes

9-23-2008 Michigan:

People v Haynes
Docket No. 277185.

Defendant pleaded no contest to a charge of committing the “ abominable and detestable crime against nature” with a sheep.  MCL 750.158.   The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 30 to 240 months' imprisonment.   In addition, the trial court found that defendant's actions indicated sexual perversion, so the court ordered defendant to register under the Sex Offenders Registration Act (SORA), MCL 28. 721 et seq.   This Court initially denied defendant's delayed application for leave to appeal,1 but our Supreme Court, in lieu of granting leave to appeal, remanded this case to this Court for consideration as on leave granted.   People v. Haynes, 477 Mich. 1067, 728 N.W.2d 868 (2007).   Defendant only appeals the propriety of the trial court's order requiring him to register as a sex offender.   We vacate the part of the trial court's order requiring defendant to register as a sex offender because the SORA does not apply to the portion of MCL 750.158 that prohibits bestiality.

... ... ...

The prosecution also advances a policy argument in support of its contention that bestiality is within the catchall “listed offense” provisions of the SORA.   Specifically, the prosecution argues, “It is unlikely that many people would not find the defendant's behavior disturbing, to the extent that it could endanger the ‘health, safety, morals, and welfare of the people, and particularly the children, of this state,’ ” quoting the Legislature's stated intent of the SORA in MCL 28.721a.   Our job, however, is to enforce the clear and unambiguous terms of the statute as written.  People v. Gardner, 482 Mich. 41, 50, 59, 753 N.W.2d 78 (2008);  Morey, supra at 330, 603 N.W.2d 250.   If the Legislature chooses to amend or revise MCL 28.722(e)(ii ) to require an individual to register as a sex offender for violating MCL 750.158 by sexually assaulting an animal, it may.   Gardner, supra at 59-60, 753 N.W.2d 78.   But this Court may not make the policy choice to require registration as a sex offender for the type of offense in the instant appeal.

We vacate that part of the trial court's order requiring defendant to register under the SORA.   We do not retain jurisdiction.

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.)

... ... ...

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:

.... ... ...

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

... ... ... ...

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.

Google Scholar Version

People v DiPiazza

11-3-2009 Michigan:

People v DiPiazza

In People v DiPiazza, 286 Mich App 137, 778 NW2d 264 (2009), the Michigan Court of Appeals ruled that Michigan's sex offender registration CAN BE unconstitutional as applied to certain individuals. Mr. DiPiazza was involved in the classic "Romeo and Juliet" relationship with his fifteen year old girl friend. He was given a Holmes Youthful Trainee Act (“HYTA”) by a Muskegon County judge. This meant that he did not have a criminal conviction. Notwithstanding the HYTA, he was placed on the sex offender registry. He later married his girl friend and they had children together. Because of his being listed on the sex offender registry, the Defendant became virtually unemployable. A Grand Rapids panel of the Court of Appeals found that SORA was cruel and unusual as applied.

In re TD -v- TD (Mar. 26, 2012), the Court of Appeals refused to apply the DiPiazza ruling to juveniles. These Defendants were convicted in the Family Division of the Washtenaw County Circuit Court of second degree criminal sexual conduct. Shortly before the Defendant turned eighteen, he petitioned for relief from the sex offender registry. The Washtenaw judge found that the Defendant did not meet the statutory criteria for removal, but found that DiPiazza made the registry unconstitutional punishment. The Washtenaw County Prosecutor’s Office appealed to this ruling to the Lansing Division of the Michigan Court of Appeals. That panel reversed the trial court’s ruling. They distinguished and somewhat criticized the DiPiazza ruling. Because of a statutory change, the former juveniles in In re TD, however, were relieved from their registration obligations.

Taking the case over at the Michigan Supreme Court level, the University of Michigan Juvenile Law Clinic successfully convinced the Michigan Supreme Court to set aside the Court of Appeals ruling (In re TD). see In re td (Oct 24, 2012). This has created as a "reset" and returned the law to a pre-In re TD state. ..Source.. by Stuart G. Friedman, Appellate Lawyer

US v Stevenson

2-23-2012 Sixth Circuit:

US v Stevenson
(676 F.3d 557 (2012)

This is a BAD decision for some registrants, and will not affect most folks. This decision pertains to some Pre-SORNA cases ONLY. The essence of this is that, the effective date of retro-activity of SORNA was changed to a date older than it was prior to this decision. And as you can see below, at least these two cases will again face failure to register charges as a result.

The court said:
Carlos Flowers and Derick Stevenson were both convicted of state-law sex offenses requiring them to register before the enactment of the federal Sex Offender Registration and Notification Act ("SORNA"), 120 Stat. 590, 42 U.S.C. § 16901 et seq. (2006 ed. and Supp. III).

Both were indicted for traveling in interstate commerce in 2009 and knowingly failing to update their registrations. The district court dismissed each of their indictments, holding that SORNA had not yet been made retroactively applicable to defendants like Flowers and Stevenson.

The United States timely appealed, and their cases were consolidated. We reaffirm our analysis in United States v. Utesch, 596 F.3d 302 (6th Cir. 2010), which was decided after the district court issued its opinions, and hold that SORNA became retroactively effective on August 1, 2008. We therefore REVERSE.

.....

For all these reasons, the SMART guidelines can and do have the force and effect of law, and they establish that SORNA became retroactive as of August 1, 2008. The Attorney General was properly delegated authority by Congress to enact the substantive rule regarding retroactivity and the authority to implement SORNA.

The SMART guidelines clearly set forth the rule on retroactivity and the authority to issue such a rule and were properly promulgated pursuant to all of the other notice-and-comment requirements in the APA.8 They became final on August 1, 2008, thirty days after they were published. See Utesch, 596 F.3d at 310-11; Trent, 654 F.3d at 582-83.

Having found no compelling argument to the contrary, we hold today what we first concluded in Utesch: SORNA became retroactive to pre-enactment offenders on August 1, 2008. The district court therefore erred in dismissing the indictments of Flowers and Stevenson, who traveled after the SMART guidelines became final.

III. CONCLUSION For the foregoing reasons, we REVERSE the district court's dismissal of the indictments against Flowers and Stevenson.

People v Lee

6-30-2011 Michigan:

People v Lee (Flicking a penis, as a disciplinary measure, is not a sex crime. Weird case.)

In this case, we hold that the trial court erred when it required defendant to register as a sex offender under the Sex Offenders Registration Act (SORA) 20 months after defendant had been sentenced.1 Accordingly, we reverse the judgment of the Court of Appeals, which had affirmed the trial court’s decision to require defendant to register under SORA.

On August 6, 2005, defendant and his wife agreed to babysit their neighbors’ two boys. Defendant prepared the children for bedtime by bathing them. Defendant’s son and the older neighbor boy went to another room after getting dressed for bed. The younger neighbor boy, three-year-old JW, was uncooperative as defendant attempted to diaper and dress him. According to defendant, he used his finger to flick JW’s penis in an effort to get his attention. Defendant flicked JW’s penis twice because JW did not respond to the first flick. JW cried after the second flick.

Under MCL 769.1(13) and MCL 28.724(5), a trial court must, before imposing a sentence, satisfy multiple requirements in order to properly require a defendant to register as a sex offender. Because the trial court in this case failed to satisfy those statutory requirements, its subsequent decision at a postsentencing hearing held 20 months after the sentence was entered to require registration was erroneous. Furthermore, the prosecution failed to bring a motion to correct the arguably invalid sentence within the time limit provided in MCR 6.429(B)(3).

Accordingly, we reverse the judgment of the Court of Appeals and vacate the trial court’s order requiring defendant to register under SORA.

People v Dowdy

7-11-2011 Michigan:

People v Dowdy (Not Favorable)

We granted leave to appeal in this case to determine whether homeless sex offenders are obligated to comply with the registration requirement imposed by the Sex Offenders Registration Act (SORA).1 Specifically, we consider whether homeless sex offenders have a "residence" or "domicile" such that they can comply with the statute's registration requirements.

We hold that homelessness is not a bar to compliance with SORA because homelessness does not preclude an offender from entering a police station and reporting to a law enforcement agency regarding the offender's residence or domicile. The Legislature intended SORA to be a comprehensive system that requires all sex offenders to register, whether homeless or otherwise. Therefore, we reverse the Court of Appeals' judgment and remand this case for trial.