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General News

DOJ urges SCOTUS not to review Sixth Circuit panel decision finding retroactive application of Michigan sex offender law unconstitutional

As reported in this post from last summer, a Sixth Circuit panel concluded in Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016) (available here), that Michigan’s amendments to its Sex Offender Registration Act (SORA) “imposes punishment” and thus the state violates the US Constitution when applying these SORA provisions retroactively.  Michigan  appealed this decision to the US Supreme Court, and SCOTUS in March asked for the US Acting Solicitor General to express its views on the case.

Yesterday, the Acting SG filed this brief with SCOTUS stating that in “the view of the United States, the petition for a writ of certiorari should be denied.” Full Article

Join the discussion

  1. Tuna

    One blatant inaccuracy I note in the DOJ document is them saying that “The (appeals) court acknowledged
    that recidivism rates of sex offenders are “frightening and high”, when in fact the appeals court indicated the opposite, i.e. empirical studies have cast doubt on this. This is a major, major misstatement in the DOJ document mis-quoting from the CA6 opinion.

    • Please note the misphrasing by DOJ

      Please note the page and section of what you cite of the appeals court misphrasing by the DOJ. Reading the doc is nauseating. Thank you.

      • Tuna

        SG brief to SCOTUS, Page 8, Para 2, referring to the appeals court opinion: “The court acknowledged
        that recidivism rates of sex offenders are “frightening and high”

        Court of appeals opinion, Page 11, Para 3: “The record below gives a thorough accounting of the significant doubt cast by recent empirical studies on the pronouncement in Smith that “[t]he risk of recidivism posed by sex offenders is ‘frightening and high.’”

        • Citations appreciated

          @Tuna

          Thank you for the citations. Much appreciated.

  2. DavidH

    OMG can’t they (DOJ) be sued over this! the Michigan laws are very much the same as every where else. The DOJ knows they cant win this and SO laws would come crumbling down!

    The DOJ is perpetuating the myth, and subjecting 800,000 and growing citizens to the fringes of society with malice a fore thought!

    • Joe

      The DOJ is correct in that SOME states SO registration schemes do meet he standards of previous decisions. The problem that the DOJ doesn’t address is that many of them DON’T. At least two of the states in the 6th, Kentucky and Ohio, have had provisonsof their scheme knocked down by state and Federal courts. The bad news for many is that these cases have revolved around the retroactive imposition of later provisions of the SO laws. The good news is that there are a lot of people who those impact and there are still some unresolved issues like the imposition of differening standards on out of state registrants like Ohio is still trying to do AFTER they got knocked down even though, as best as i can tell, the Old law that USED to apply to all registrants did not make that distinction. The next round of cases in the 6th might deal with people who are now required to register for longer periods of time than their original sentence provided for. I think that Kentucky did that when they went from 10 to 20 year registration for less serious cases. Remember that they tried to impose the new residency restictions on everyone and got their butt handed to them.Now, they can’t even use the “grandfather” clause for anyone convicted before 2006 IIRC. Residency restrictions are “punishment” in the Commonwealth. I am not sure when Tennessee started requiring that out of state registrants spend 5 years on the Tennessee registry with the attendant residency restrictions, etc, even if they were well beyond the 10 year mark, but maybe someone will challenge that too.

  3. 1984

    We just have some messed up people in our government. Our court system is trying to make sense of this mess and the feds are saying stop! They might loose some power over a group. They use the guise of public protection. They refuse to acknowledge the real facts. They need someone under foot to feel powerful. If they loose their ability to abuse RSOs who would be next? There is always a group transformed by a few in government into an enemy. Our Constitution needs to be protected and fought for. The fact it was written predicted the eventuality of government behavior. Everyone needs its’ protection and guidance. Even those small minded low status people causing & perpetuating this mess.

    It is so hard not to swear when writing. But just realizing the limited thoughts at hand…

  4. This was to be expected I would think

    I think we can see who really is behind this at DOJ…the new AG of course. This is their way of sticking up for federal law as is today and possibly making the other Courts of Appeals work before it gets to be heard again at SCOTUS (maybe even after Justice Kennedy has retired and a new SCOTUS Justice is in play which would mean the USG’s playing prevent defense in the meantime until such time).

    You can certainly see where SCOTUS would have expected this reaction from the SG. You can also see where, given Packingham and the acknowledgement of misleading data, the misleading data in this SG document would lead SCOTUS to hear it anyway. You cannot back away from that misleading data point now since you just announced it is misleading and continuing to give punishment out after all is said and done with sentencing. Justice Kagan was a SG once and would understand this perspective all too well. I bet the SG document went under some serious revisions post-Packingham decision.

    I pray SCOTUS still hears Doe v Snyder to clear the air of any ambiguity.

  5. Justice For All

    I can’t help but sense a huge ulterior motive behind this suggestion.

    I feel that the DOJ fears the repercussions of a Supreme Court decision that would agree with the previous outcomes. It’s almost that they foresee a real clusterf**k waiting to happen.

    So now here we are, with them asking to not hear it so that it can remain localized and contained. This is the shadiest thing I have seen thus far. They truly should rename themselves and drop the “Justice” from their name. They aren’t acting in the name of Justice.

    • 4sensiblepolicies

      Agree with you 100%. The absolute in hypocrisy that an arm of the government with the word ‘Justice’ in it’s name is trying like hell to make sure justice remains contained to only one jurisdiction. It ought to be a red flag to SCOTUS that DOJ has even made the statements they did. Obviously, DOJ believes they are going to have a big problem if this goes to SCOTUS – which is all the more reason it should.

  6. G4Change

    So what does this mean?

  7. Lake County, CA

    This is amazing that the government is so afraid of SCOTUS making a decision in this case that the government is agreeing with the court of appeals by stating that SORA is punitive in Michigan because of the use of the cumulative effect of three statutory features:

    1) The school safety zones in which a sex offender is not permitted to live, work, or loiter. 2) The requirement that an offender be categorized into a tier based on his underlying offense without an individualized assessment and that his assigned tier be made public. and 3) The requirement that sex offenders appear in person “to report even minor changes to their information.”

    This brief is a wonderful gift for us and should be of great help in rolling back many punitive requirements put upon us. I think we should all be doing the happy dance now. I would prefer this case go to SCOTUS, but this opinion by the feds is still really great on it’s own.

    • Lake County, CA

      This one sentence in the brief could take down the public registry in CA: “The requirement that an offender be categorized into a tier based on his underlying offense without an individualized assessment and that his assigned tier be made public”.

      Just ending the public online registry without the individual assessments sounds good to me.

      • Big Broad Brush

        Could apply to the Fed statute too for those convicted under Fed Law. This is very applicable across the legal spectrum we live under in this country.

    • New Person

      I didn’t get that feel you got.

      from the article (the brief, actually):
      ============================
      Accordingly, to the extent the courts of
      appeals have reached different outcomes in state sexoffender-registry
      cases, those outcomes reflect differences
      in the statutory schemes rather than any divergence
      in the legal framework.
      ============================

      This sentence says it’s all regulatory b/c it stays within Smith v Doe. There is no “there, there”. At least that’s how interpreted it. Everything is still constitutional.

      • Lake County, CA

        I don’t feel like writing a long response to you on this. But basically the brief said that the individual states may have exceeded Smith v Doe in different ways. Although the brief states 3 ways in which Michigan has exceeded Smith v Doe guidelines, they didn’t believe SCOTUS should get involve since each state has their own laws which may or may not exceed Smith v Doe guidelines. However as I read it, all the states now actually exceed what SCOTUS stated was non punitive in Smith v Doe. All three statutory features that the brief agrees are not constitutional based on Smith v Doe are all used by almost all 50 states.

        The Federal Government is basically agreeing with the Appeals Court that these three items are not constitutional” 1) The school safety zones in which a sex offender is not permitted to live, work, or loiter. 2) The requirement that an offender be categorized into a tier based on his underlying offense without an individualized assessment and that his assigned tier be made public. and 3) The requirement that sex offenders appear in person “to report even minor changes to their information.”

        These 3 items that are currently mandated in CA (like most states) were never discussed in Smith v Doe and therefor likely unconstitutional as the Court of Appeals and this brief is saying. The brief is also trying to push the idea that each state should be allowed to fight these issues separately since they all may not have overreached what Smith v Doe said was allowed. If our CA Attorney General is paying attention and reads this brief, it could put a halt to any new retroactive laws.

        • Beyond the states

          What you say is applicable to the Fed Law also WRT tiers and assessments, so SCOTUS hearing Doe v Snyder is applicable right away federally given they are the standard bearer to the states in addition to whatever the states follow from Fed Law.

  8. PK

    I would look forward to hearing more analysis on this.

  9. Registry Rage

    The circling of the wagon has begun! Of COURSE they want to protect this corrupt status quo AND the millions of security theater jobs the AWA and Megan’s Law have created over the past 23 years. They can no longer hang their hat on the recidivism and “public safety” argument.

    Things are going to get UGLY if SCOTUS is indifferent and dismissive of Snyder.

    The SG knows fully well that the Snyder challenge could be the beginning of the end for the registry, also.

  10. New Person

    So wow.

    The threshold is this, ” as long as it starts off as regulatory, then you have to prove beyond a shadow of a doubt it’s punitive.”

    That’s the frame of reference for this denial. Because the Alaska SORA didn’t include certain other penalties that Michigan does, then it’s not really above and beyond on what Smith intended. Forget what Justice Kennedy wrote specifically in the opinion. The intent is still regulatory and there is no clear evidence of punitive aims.

    The state can pass any law to be retro-active as long as it’s not punitive. Since the intent of the registry in regulatory, then it cannot be punitive.

    Recidivism rates, correct ones, do not matter. Only the intent of civil regulation is what matters. “Intent”. Everything else can be glossed over b/c the intent was civil.

    I pray the SCOTUS still takes up Snyder and reviews the “extra constraints upon persons who are no longer under custody” as Justice Kennedy implied in the Peckingham briefing. But right now, I’m just demoralized at how the AG worked around how the court of appeals founded the additional penalties as punishment according to the factors found in 2003 Smith decision. I just feel there’s no way registered citizens can ever share the same liberties as a free US citizen. I’m so depressed right now.

    • Intent

      @New Person

      The “intent” is always to do good by laws according to those who write and pass them before they are possibly signed into law. If we always went by intent, then everyone would be screwed because how they are carried out would be irrelevant. You have to consider how the intent is carried out in the legality and constitutionality of things.

  11. New Person

    I read that the AG used the same statistic that WAPO’s Michelle Lee pointed out as misleading on SO’s re-offending and any other criminal convicted of a sex crime. It’s not an apples to apples comparison. Other criminals do not re-offend into a sex crime. That’s disingenuous statistics.

    Also I showed how the that statistic wasn’t based upon the same common denominator to have a direct comparison of sex crimes. I’ll post it again here:

    Alito’s rates (different divisor)————————

    In words:
    I. registrant sex offense after release / registrant convicts released
    II. non-registrant sex offense after release / non-registrant convicts released

    In numbers:
    I. 517 / 9,691 = 0.0533, or 5.3%
    II. 3,328 / 262,420 = 0.0126, or 1.3% (rounded up)

    ::: This is where Alito and the AG state that sex offenders re-offend at 4 times the rate of other convicts. But this is not a re-offense to re-offense rate comparison. It’s a re-offense rate to a different crime comparison :::

    Total convict pool comparison (same divisor)——————-

    In words:
    I. registrant sex offense after release / total convicts released
    II. non-registrant sex offense after release / total convicts released

    In numbers:
    I. 517 / 272,111 = 0.00189, or 0.19% (rounded up)
    II. 3,328 / 272,111 = 0.01223, or 1.22%

    Total Sex Offense comparison (same divisor)——————-

    In words:
    I. registrant sex offense after release / total sex offense conviction
    II. non-registrant sex offense after release / total sex offense conviction

    In numbers:
    I. 517 / 3,845 = 0.1344, or 13.4%
    II. 3,328 / 3,845 = 0.8655, or 86.6% (rounded up)

    =========================================

    Because of the instances I provided above distinctly reveals that the AG is using misleading statistics to paint registrants worse as it lacks contextual volume, also known as qualitative analysis. The AG sides with the most egregious statistic as opposed to the other known statistics. The last comparison shows that of the 3,845 sex crimes, only 13% of that are from registrants.

    This is where I hope Michelle Lee or Dr. Ellman start to chime into the AG’s social science information.

    • Painting by numbers

      @New Person

      Excellent points once again. It is never said those who are using the law and data in a paper have to tell the truth, whole truth and nothing but the truth. They only have to use what they want to paint with to make a painting to their usefulness not what the truth is. Of course that goes both ways in a court.

      Is your 13% a recidivism rate? Just want to understand context is all and think I am missing it

  12. J

    Most of you are crybaby fear mongerals acting like the worlds gonna end. Scotus still may pick it up and if they don’t the doj is stating that we win in Michigan. You guys have all been screwed by the registry so long that you always look for the worst in everything. Get over your doubt driven lives and look at the cup as half full. I’m sick you bums casting doubt on everything. A win in in Michigan, which this would be, is ultimately a win for all.

    • Steve

      You’re just realizing this place is infected with conspiracy theorists?

      • Joe

        It’s no longer paranoia if people are actually out to get you……;-)

    • Bobby

      Well though I do not understand all this stuff, what I do understand is the SG just said that the Michigan registry is without a doubt PUNITIVE. So since I live in Michigan and the way I read it and see it, we hear in Michigan have WON. FINALLY SOMETHING IN OUR FAVOR.

    • Lake County, CA

      I don’t see how anyone can read this as anything but a big win for Michigan and all other states. If SCOTUS was to decide not to take this case it only means that we will need to take this issue up in each district court separately. But the dominoes will now quickly fall with the Federal Government clearly agreeing that school safety zones, tiers without an individualized assessment and that his assigned tier be made public and the requirement that sex offenders appear in person to report are all likely unconstitutional.

      The government also failed to provide the court with any actual scientific data on the benefit of these laws or any evidence on recidivism rates.

      I have real hope for major changes now. I think that the states will need to not exceed the very simple rules that were once just like a ‘Price Club’ membership. No public disclosure, no presents restrictions and just confirming your address by sending in a postcard annually. What will likely not change are restrictions while on probation or parole.

      • AJ

        @LC, CA
        “I don’t see how anyone can read this as anything but a big win for Michigan and all other states.”
        I don’t follow your logic. Did you really mean to say this is a “big win” for MI? I see it as a big loss for MI. They have to throttle back their crazy, overly zealous laws.

        I agree that States are going to have to be much more careful what they try to enact. Anything beyond Price Club membership and SORNA ‘floor’ will be viewed with suspicion in the courts.

        • Lake County, CA

          I guess I should have said big win for MI “registrants”.

  13. cool RC

    I just hope that the Scotus is reading this and thinking that DoJ has something to hide and may want to open it up to see what it is.

  14. Bob

    What did you guys expect from an SG? That he agrees fully with the 6th circuit and not with the state of Michigan? Lol. I knew this would happen, I just didn’t think we would get an answer so rapidly from him.
    I read somewhere recently (can’t remember where) that the majority of cases where SCOTUS asks the SG to weigh in, they all get accepted and reviewed by SCOTUS – 100%. Snyder will most likely be heard. I just don’t understand the negativity from some of you on here. We have seen the tides change as compared to past 10 years ago or so. Have a little more faith. I like the panel of justices we have on now. I think if SCOTUS is decided in our favor, I’d come down to 6-3. Shocking will be an 8-0 win, but I’ll bet on 6-3. While yes, I’m anxious for this case and even a bit nervous – which is normal. I refuse to be negative. Nothing is forever. At some point whether now or later, something has got to give in our favor.

    • Bob

      By the way, I’ve been done with my sentence for 3 years now. ( 4 years by the time Snyder gets decided.) But still have to register like if I was still on probation. Can’t wait to see how this turns out.

      • Bobby

        @Bob,

        Well I have been off parole since 1996, and when I was sentenced Michigan did not even have a registry, and now since Michigan changed my registration date from 1995 to my Conviction date of 6-19-92, I have been on this stupid thing for 25 years now, which is my original registration requirement, until it was moved to life registration. So I am hoping that I will finally be done with this stupid crap.

        My only other question is will I still have to pay that $50 annual fee thing Michigan passed in 2013, I wonder how that fits into all this unconstitutional crap.

        • Bob

          I feel you Bobby and I can’t even imagine or compare to your length of time. I’m not sure about the fee you mentioned at the end with Michigan as I’m from another state, fairly worse if not equal to. I’m just hoping this Snyder case will give at least those who have finished their sentence the relief from it. The Snyder case does address some of the things if not all that I want relief from. All we can do is wait.

  15. AJ

    Wow, I gotta say the USSG really threw MI under the bus to try to save SORNA. That’s what I got out of the CVSG reply. I have long thought that USSG was trapped on this situation; it appears they’re trying to take the long way around on the issue. Instead of saying SCOTUS should decide it all here and now, they’re saying the courts are doing a wonderful job of ruling on the diverse schemes across the country. We all know that’s total BS, and USSG probably does too. The CVSG reply is a stinker, and like someone else pointed out, Kagan will sniff that out pretty fast.

    As I previously posted (http://all4consolaws.org/2017/07/general-comments-july-2017/#comment-179367), I think SCOTUS will vote to hear it and will issue a decision favorable to us in which they “clarify” Kennedy’s words from Packingham. Reminder: it only takes four Justices to grant cert. I see Ginsburg, Breyer, Kennedy, Kagan and Sotomayor as five who will vote to grant cert.

    Someone mentioned reading SCOTUS takes 100% of CVSG cases. Not true, from what I can find (https://www.lawfareblog.com/does-supreme-court-follow-recommendation-solicitor-general-foreign-relations-cases-which-court-has & https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1377522), but they do take them often. Of further interest is that SCOTUS likes to hear the expertise of the US Gov’t, but doesn’t take too seriously their USSG’s opinion on granting cert. As one expert in patent cases before SCOTUS says, “while what the SG says is important and viewed as important by the Supreme Court, it is by no, the later is by no means a rubber stamp of the former.” (http://www.ipwatchdog.com/2012/11/29/mechanics-of-a-supreme-court-decision-to-grant-certiorari/id=30526/)

    My money remains on what I posted before: cert granted; decided in our favor and more broadly; probably a 5-4 decision, though maybe 6-3.

  16. Lake County, CA

    I’m just hoping we don’t have any change in the SCOTUS justices we have now. I fear who Trump might pick next. Sometimes it’s better to keep the enemy you know than to take a chance on someone new you don’t know. If most of SORNA is eventually found unconstitutional, I doubt most politicians will be too upset as it will save a ton of money that politicians can use for other social programs that are underfunded and would will likely keep their constituents happier and the politicians can just blame the failure of SORNA on the courts.

    The only real problem is that if politicians can’t pick on us to promote their career, who will they pick on next? Maybe they should pick on witches again. I heard they live in Florida. lol

    • A.

      It will be the same panel of justices for SCOTUS by the time Snyder gets heard, if it gets granted cert(hopefully nobody dies). Kennedy is not retiring for now and Trump’s chosen justice Gorsuch doesn’t like the government having excessive regulatory powers.

      Unfortunately, having a scapegoat for the government to bully next is part of our country’s history. Just like it’s wars. The U.S without a bullied scapegoat or a war to fight on is like our Earth having no sun and moon. But, people have always fought back the government, just like we are doing now.

      I live in FL, no witches here to my knowledge. Lol.

      • Lake County, CA

        I thought all Florida politicians belonged to a coven to discuss how they would hurt others to keep the spotlight off them. Just a rumor perhaps? Or perhaps true? lol

        • A.

          The more appropriate term would be jerks. Lol.

          But anyway, not just Florida politicians, but you can find these types of career politician jerks in any state as well as DC lol.

    • Harry

      Except Trump is not a politician and this is in our favor.

      • Lake County, CA

        But trump is a law and order advocate as we can see by his Attorney General. As long as the laws don’t apply to Trump.

        • Harry

          True Lake, he is a “law or order” man, however, it is the cool headed “law or order” folks that are pushing for the changes in CA registry, which is contrary to the hysteria fueled soccer moms and male hating feminism bunch that have been influencing laws in both parties. We must remember Trump do have RC friends in his personal back room. He is not any worst than Obama. Time will tell.

  17. A.

    The beautiful thing about the Snyder case is that it was ruled using “empirical evidence” and actual facts and statistics. After the Snyder case, a handful other federal courts both at the district level and the appeals level have ruled other cases in our favor influenced by the 6th court of appeals ruling of Snyder and even citing the 6th court of appeals with Snyder in their ruling of their own cases. I’m from Florida, and we’re currently dealing with a residency restriction issue here. The Northern district court of Florida denied our petition or suit to consider residency restriction a punishment. When we took it the 11th circuit court of appeals which pertains to Florida, they reversed the Northern district’s denial of our petition and sent it right back to them. Why ? Because of the Snyder case. The 11th circuit court of appeals even cited the 6th circuit court of appeals with the Snyder case in their reversal. It was a beautiful thing to read. lol. Now the Northern district court of Florida has ” pressure ” to them. If they go against us again, We will bring it to the 11th circuit court of appeals again and well, they already ruled the first time in our favor – all because of the Snyder case.

    Like someone else mentioned here, I like the SCOTUS panel that we have currently. I can say that 5 or 6 of them are in our favor. The key to Snyder that has influenced already other Federal courts below SCOTUS has been the empirical evidence of facts and statistics. I want SCOTUS to take on Snyder and I believe they will. It will be pretty hard to ignore the empirical evidence. But lets say SCOTUS doesn’t take on Snyder, then I won’t be worried either. That means the 6th circuit court of appeals has the biggest influence all across the land and like i just previously mentioned, it has already influenced a handful of the other Federal courts and hopefully many others will follow.

    Staying hopeful and positive.

    A.

  18. J

    The more I look at it I see that the DOJ agreed that the 6th circuit is exactly right and there is no need for any review(although a ruling from scotus in our favor is ideal) because it’s such a simple case……DOJ is saying(YES ITS PUNISHMENT AND RETROACTIVE AND CHANGED SO SEVERELY OVER THE YEARS THAT IT IS UNCONSTITUTIONAL, MICHIGAN YOU LOSE AND THIS CASE CAN BE USED IN ALL OTHER CASES….

    • Chris F

      That’s how I see it too.

      I still don’t like what was pointed out above though about “frightening and high” being mentioned as correct instead of being mentioned as false hearsay that was incorrectly relied on in Smith V Doe, Conn DPS V Doe, and McKune V Liles as well as hundreds of other lower court cases and reasons for local laws.

      • AJ

        @Chris F
        Yeah, the mere mention of “frightening and high” highly frightens me. The litigants are allowed to file supplemental briefs in response to the USSG’s reply, so let’s see what comes of that. MI is in a very tough, tight corner, I think, with even the USSG saying they’ve overstepped. More importantly, I’m curious what ACLU-MI has to say…I desperately hope they address and correct that that horrible untruth.

        After doing a bit more reading about CVSGs and how often SCOTUS follows recommendation, coupled with the dressing down the USSG gives MI and its position (read footnotes 2 and 3!), I’m now a bit more on the fence whether SCOTUS will hear it or not. I still lean towards yes, based on the words in Packingham, and the panel of Justices we have, but am less confident than 24 hours ago. From where I sit, SCOTUS taking it simply expedites the many court cases across the country and–for better or worse for us–will draw a (new) line in the sand of what’s acceptable and what’s not. We may not like what they say is acceptable and what isn’t. If SCOTUS declines, then we have to litigate over and over in many courtrooms across the country, using the 6th’s Snyder decision as non-binding (outside the 6th) input. Each case victory will help with the next, but it will also mean much more time, money and waiting. Hopefully a string of State SC and Federal Court decisions can put a stake in this horror’s heart.

        Something also of note from USSG is their mentioning that many States have no residency or presence restrictions. Hmmm…given there is no statistical difference among the minority with and the majority without restrictions, I don’t see how any State can make a rational basis argument that restrictions do anything. Compiling data from the States with restrictions and comparing them to States without for presentation in court(s) seems a prudent step.

        Regardless whether SCOTUS takes Snyder, I think it’s now virtually an accomplished fact that, absent risk assessments, pretty much anything beyond release of public information is punitive, and can only be applied prospectively. The next step after that, at least for me, will be slamming my State with the Full Faith and Credit clause and/or double jeopardy. I fully expect they will say that, since I offended after they passed their laws, I am subject to them. It should be a relatively easy argument to win.

        Cracks in the schemes have not only appeared, they’re expanding, with shards falling and pieces crumbling. Between USSG’s words, wiser judges, the truth on recidivism, and helpful attorneys (ACSOL, the law firm suing WI cities, etc), things are finally turning our way. Thanks to God!

  19. Bobby

    Hello Everyone,

    Well I finally got an e-mail back from Ms Aukerman about 20 minutes ago, I don’t know if this will help anyone at all or not but I thought I would pass it on anyways, not sure why she mentioned the Packingham case though,but here is what she wrote back regarding my question last week.

    I tried to send you something earlier, but it bounced back.
     
    We will know in October if the Supreme Court takes Does v. Snyder.  The Michigan Supreme Court has ordered additional briefing in Temelkoski, and so it is being rearguard in the fall.  Packingham is a not a Michigan case, so although it is useful it will not directly affect you.

  20. Bobby

    Here is another e-mail I just got from Ms Aukerman,

    If  the Supreme Court takes it, it will be about the MI law, but it will have an impact nationwide.  If they don’t take it, it does not mean that people will automatically come off, but it will limit what can be done.  For many people it will limit the length of time to 25 years.  If they take it it will be at least 6 months till a decision.
     
    Miriam Aukerman
    Senior Staff Attorney
    American Civil Liberties Union of Michigan
     
    Hide original message

    • steve

      Hey Bobby,

      Next time you correspond with her it would be great if you could ask her why the gov’t keeps citing “the frightening and high” garbage.

      • Bobby

        @ Steve,

        I will make sure I do that and see what she says and if she will bring that up if SCOTUS excepts the case. I will try to get a hold of her again this week or next week for sure it’s just depends when she wants to e-mail me back. I was shocked she e-mailed me back twice today, but I will make sure I ask her that question for everyone’s sake.

        • Tuna

          Yes, and specifically, please point out to her that the Solicitor General’s brief completely mis-stated what the Court of Appeals stated regarding “frightening and high. Near the beginning of this thread, I have pointed out the exact passages in the SG brief and in the Court of Appeals opinion showing how the SG brief mis-states what the Appeals Court said. This may be useful to her. Thanks.

  21. Bill

    Anyone know of news on civil suit? what else would help make this right?

    • Nick

      I do know of an upcoming Federal lawsuit that will be filed in Texas sometime this year. This will mimic the Michigan lawsuit that was filed last year. I was contacted to be a part of this and accepted.
      I am hoping this September it will be filed.

    • A.

      Florida has a suit pending in a District court on residency restrictions backed by the 11th court of appeals and is using Snyder. One of many they are planning so far.

      • AJ

        @A.
        Do you by chance have a link to share about this case? I’d be interested in following it.

  22. Bill

    That sounds good, I’d love to be part of it, thanks for the info!

  23. SO4life

    Nick, I am also from texas. My offense happens in 1992 of rape of a 17 yrs old and I was 18 at the time. I was given 5 yrs sentence and was supposed to be off the registry in 2007, but was extended to life time due to retroactive laws. Can you check to see if I could join the lawsuit? I believe I could be one of the best person to joint the suit based on my case. In the alternative I could contact them if I know who to go to. Thanks!

    • Nick

      Hi so4life,

      Get a hold of teri Estes out of Houston ask for one of her attorneies his name jim lebow first name is James (if you want to look him up). He has practiced out of new York and California. One thing he has said was texas is a backwards state.office 832 220 9454

      • Bill

        Anyone know of a Michigan attorney, or class action, been dealing with this since 1992.? Thank you.

  24. AJ

    My big fear about SCOTUS and Snyder is they will issue a GVR (grant certiorari, vacate, remand). I see this as extremely unlikely, but if it happens, we’ll be tossed into turmoil for months. That other Fed Courts are applying Snyder in their decisions may is a “vote” against SCOTUS hearing it. SCOTUS is quite happy when the Fed Courts all come into agreement on something; it’s when there’s a disagreement among them that SCOTUS steps in to settle the dispute. If SCOTUS does refuse to hear Snyder, it plays into our favor anyway–especially given the USSG opinion. I’ve actually had a few thoughts of wonder about why MI is even still plowing ahead. I guess they want to go down swinging to save face in some manner.

    • lovewillprevail

      AJ, there is a disagreement at the appeals level. You already know the ruling from the 6th, but did you know the 5th circuit court of appeals said residency restrictions are valid even if 97% of the city was off limits to someone who had already completed punishment (expo facto)? The attorney is petitioning the supreme court to hear the case since 2 different appeals courts have opposite rulings. I would think chances are greater than 50% that they will hear the issue.

      • AJ

        @lovewillprevail
        No, I didn’t know that, but given the States the 5th Appeals covers, not surprising. That significantly increases the odds SCOTUS will take it. IMHO, it’s well above 50% (i.e. even odds) they take it. SCOTUS likes letting the Appeals Courts consider the merits of pro and con (saves them some work, honestly), but they don’t like that to remain.

        Do you have a link to the 5th Appeals case to which you refer?

      • AJ

        @lovewillprevail
        Reading the 5th’s decision, it doesn’t quite fit with what happened in Snyder. The TX case was about Procedural Due Process, whereas the Snyder case was about Ex Post Facto. The State (or City) did nothing wrong under Procedural Due Process.
        As Chris F has pointed out elsewhere, the Procedural argument is a non-starter and, IMHO, will fail every single time.

        Footnotes 2-4 (particularly #3) of the 5th’s decision hit exactly upon what needs to be addressed: banishment and substantive due process. (http://law.justia.com/cases/federal/appellate-courts/ca5/15-41456/15-41456-2017-05-30.html) Why do appellants insist on “explicitly waiv[ing]” the substantive arguments, especially in light of CT DPS. I just don’t get it.

  25. Txso4life

    AJ, here’s the link to the recent 5th circuit court opinion upholding 1500 ft resident restriction. http://law.justia.com/cases/federal/appellate-courts/ca5/15-41456/15-41456-2017-05-30.html

    • Chris F (@AJ and Txso4life)

      Not AGAIN!!!!!!!!!!!!!

      This was the same lawyer screw up that lost Connecticut DPS V Doe 2003 in front of SCOTUS and for the exact same reasons!!!

      This should NOT have been a Procedural Due Process challenge, but a Substantive Due Process challenge. The judges are right. There is no procedure problem because there is no procedure involved. In Con DPS V Doe, the Justices actually SAID that this type of thing probably wouldn’t hold up under a Substantive challenge….yet here we are still 14 years later with no Substantive Due Process challenge.

      I would love for a lawyer to explain how this keeps happening that they learn nothing from the past, or Constitution 101 class, unless it truly is a conspiracy and certain lawyers have no intent of actually representing clients that are sex offenders.

      I am in Texas too btw. Soon, we can’t go to our kids schools without disclosure and an escort thanks to HB2575.

      • Chris F

        I’m afraid I may have jumped to conclusions about this particular lawyer.

        It turns out, he specifically supports sex offenders and even sometime pro-bono.

        http://www.dallasobserver.com/news/defending-sex-offenders-one-city-at-a-time-8036724

        It does scare me that he is handling multiple residency restriction cases in Texas if he isn’t raising the best legal arguments. I would love to know why Substantive Due Process, banishment, and Bills of Attainder challenges weren’t raised against residency restrictions, as well as push for “rational basis with teeth” if it couldn’t get the more appropriate intermediate or strict scrutiny.

        From this:

        http://blog.legalsolutions.thomsonreuters.com/law-school-1/tackling-important-topics-law-school-part-6b-rational-basis-teeth-intermediate-scrutiny/
        ********
        Rational Basis “With Teeth”

        In Windsor, the Supreme Court found that the Defense of Marriage Act’s Section 3, which limited the federal definition of “marriage” to opposite-sex spouses, was created out of “Congress’s ‘moral disapproval of homosexuality.’ “

        Under this heightened scrutiny, that is impermissible.

        This judicial review level’s other name – rational basis with teeth – is an apt description. It is, essentially, a version of rational basis that is used to strike down laws whose sole purpose is to discriminate against a certain group that isn’t necessarily considered a suspect or quasi-suspect class.
        *********

        • Son of Liberty Child of Freedom

          @ Chris F

          You stated:

          “I’m afraid I may have jumped to conclusions about this particular lawyer.”

          But you should not be “Afraid” Chris F as you should simply come to the understanding that as a “Being” you operate under “The Human Condition” and the “Heuristics” that are a component of “The Systemic Errors of Thinking” that the Human Mind sub conscience has chosen as the Least of Two (2) Evils Ways or Paths on which to travel upon Life, that is to say Want Provoking Ways on which to travel upon Life.

          A Heuristics can be mental shortcuts that ease the cognitive load of making a decision.

          Examples of this method include using a:
          1. rule of thumb,
          2. educated guess,
          3. intuitive judgment,
          4. guesstimate,
          5. stereotyping,
          6. profiling, or
          7. common sense.

          I suggest utilizing Probability Judgment with a measure of Confirmed & Proven True: Intuitive Judgment from Life’s outcomes that can be increased with the Time elapsed of a Humans Life.

          I speak a True Song

          As Yehovah Lives, so should we

        • AJ

          @Chris F
          I’m right with you, brother, regarding the Procedural vs. Substantive mistake made in CT DPS. Perhaps a (truly) kindly worded letter/email to the attorney would be helpful. One would expect he was aware of CT DPS and the opinions hinting at the Substantive angle. But, maybe he wasn’t. Maybe his paralegal, staff, and/or he himself missed it–until it was slapped across their faces in the TX opinion. Given your knowledge and writing abilities, I think it would be a worthwhile effort. Perhaps even ask to the logic behind following the (futile) Procedural route. (Such a query could backfire, though, as it could be perceived as an attack on the attorney and his abilities.)

          No matter what, it sure seems worth the effort somewhere to make the exact same claims in a court, but under Substantive Due Process. Maybe this attorney is willing to try again.

          @Txso4life: Thanks for the link.

          • New Person

            I agree. More information cannot be hurtful. They can choose not to use it, but at least they have that information at hand.

            There’s a lot of laws going on and many don’t know all of it. So a nudge in the right direction could help instead of re-creating the wheel that gets stopped.

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