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National

MI: Lawmakers ordered to revise the Sex Offender Registry Act

A U.S. district court judge is giving Michigan lawmakers 90 days to change the state’s sex offender registry law, almost three years after it was first ruled unconstitutional by federal appeals court.

U.S. District Judge Robert H. Cleland issued an order that the law must be changed on Thursday.

The ruling stems from an August 2016 decision by the U.S. 6th Circuit Court of Appeals in Cincinnati which found that Michigan’s Sex Offender Registry Act was unconstitutional. Full Article

Decision

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  1. Gary

    Judgement has been entered on 5/23/19 in the case. I think this is some good news but not entirely sure. Ill paste part of it below, this is pulled from pacer:
    By stipulation of the parties, it is ORDERED as follows:
    1. The Court enters a declaratory judgment, pursuant to 28 U.S.C. §§ 2201 and 2202 and consistent with Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016), cert. denied, 138 S. Ct. 55 (2017), that the current Sex Offender Registration Act (SORA), M.C.L. § 28.721 et seq. is punishment and that the ex post facto application of the 2006 and 2011 amendments is unconstitutional;
    2. The Court defers for 90 days the question of whether this declaratory judgment should apply to the following class members:
    a. Paul J. Betts and David Allen Snyder, whose criminal appeals are currently pending before the Michigan Supreme Court;
    b. Members of the pre-2011 subclasses who have a pending direct appeal in a criminal case where a Michigan state court, prior to August 25, 2016, issued a decision involving the question of whether SORA violates the Ex Post Facto Clauses of the U.S. or Michigan Constitutions; and
    c. Members of the pre-2011 subclasses who have an open civil case in either Michigan state court or federal court that includes a claim that SORA violates the Ex Post Facto Clauses of the Michigan or U.S. Constitutions.
    3. In order to avoid interfering with the Michigan legislature’s efforts to address the Does I decisions and their findings of constitutional deficiencies with SORA, the Court defers a ruling on any injunctive relief for 90 days. The Court also specifically defers ruling on:
    a. Whether the 2011 amendments can be severed from SORA, and whether, if the 2011 amendments cannot be severed, the statute is null and void as applied to people who are subject to registration based on offenses committed before April 12, 2011; and
    b. Whether there are issues in this case that should be certified to the Michigan Supreme Court for decision in the first instance.
    4. In the event that the legislature has not revised the statute within 90 days of this order, the parties shall submit a joint status report and the Court will set a briefing schedule to decide the questions of (a) whether this declaratory judgment and any subsequent injunctive relief shall apply to the class members listed in ¶ 2; (b) severability, and whether SORA can apply at all to pre-2011 registrants; (c) what remedies shall be ordered in this case; and (d) any other issues raised by the parties at that time. In their joint status report, the parties shall address whether there are issues of state law that should be certified to the Michigan Supreme Court, or whether this Court should decide those issues.
    Dated: May 23, 2019
    Approved by:
    s/ Miriam Aukerman (P63165)
    Attorney for Plaintiffs
    1514 Wealthy SE, Suite 242 Grand Rapids, MI 49506 616.301.0930 maukerman@aclumich.org
    s/ Paul D. Reingold (P27594)
    Co-Attorney for Plaintiffs 801 Monroe St.
    363 Legal Research Bldg Ann Arbor, MI 48109 734.763.4319 mclp@umich.edu
    SO ORDERED.
    s/Robert H. Cleland Hon. Robert H. Cleland U.S. District Judge

    • CR

      It’s good. It’s progress. Section 1 says that the state agrees that the current SORNA is punishment and the ex post facto application of 2006 and 2011 amendments is unconstitutional. You know the state agreed because “by stipulation of the parties” the court entered declaratory judgement.

      The court defers decision on whether the declaratory judgement should apply to the people listed in parts a, b, and c of section 2 that have ongoing active cases.

      The court defers a decision on injunctive relief to give the legislature time to fix the law.

      The court will reconvene after 90 days if the state hasn’t fixed the law by then. In my opinion, there’s a good chance that is exactly what is going to happen. Then we wait another couple of years for things to play out further.

      I’d call it excellent progress, but the eventual outcome, and whether it will be good or bad for RCs, is yet to be determined.

      • steve

        And remember, being classified or changing classification (tier) without a hearing, which will happen here, was ruled unconstitutional in this case. Excellent precedence for anyone moving to tier three here I believe.

        • SR

          @Steve, That’s an interesting idea. But is being placed into CA’s T3 a lateral movement since CA is automatically lifetime? Basically, nothing changes for anyone on T3 from the current situation. But some may receive relief that they were not originally going to. Not that there’s any laymen logic to our laws though. Words all to often have very different meaning in the legal dictionary than they do in the laymen one.

      • Steven V.

        Although this is certainly not the end of the story, the progress that is being made in Michigan for registrants is nothing short of a miracle. I do hope that the Michigan legislature complies with this order so that they have the ability to more fully serve the needs of their constituents, even those who are continuing to feel the weight of crimes that were committed years prior.

        It is important to note the significance of the state admitting that registration requirements are indeed punishment; these words will surely be utilized in cases to come.

        And, now the waiting game ensues.

        • Dustin

          @ Steven V:

          I actually hope the Michigan legislature does nothing. Then the court will have to strike down the Michigan registry en totem. After ruling it’s unconstitutional, the court can’t very well order the petitioners to abide by it.

          And given the Michigan Attorney General’s statements, I doubt the state would appeal either.

        • Chad

          What is interesting is that summer recess is going to take up most of the 90 days. They meet in the month of June and only 1 time in the months of July and August. So if they are going to do anything, it would be in the next 30 days

      • Josh

        I am not getting overly excited about these developments….cautiously optimistic, maybe…there’s a lot to unpack in all of this. Severability is going to be a key issue in my opinion. If they can do this without declaring the whole statute null & void then it’d be better in my opinion. Getting the whole law removed would be good for EVERYONE in the VERY short term but bad for everybody because they’ll turn right around and pass legislation that will need to be contested again just like Pennsylvania. You MAY get removed if you have enough time on the registry like a few of us on this forum but even WE might be subject to whatever knee jerk reaction legislation they come up with. My gut tells me this is far from over…

        • Chuck

          Getting the Muniz decision here in Pa was the best thing that has ever happened for us here in Pa. Act 10 and ACT 29 of 2018 are pending before the PA Supreme Court and we expect a decision by early 2020.

  2. TS

    Thanks @Gary for posting that decision judgement.

    I hope this gets to the Tenth Circuit in Denver since it appears to me this is another court that agrees with 6th CCoA making it another court to add to the list of those who feels it is unconstitutional. If I am off on that, then please advise.

    • CR

      @TS, are you thinking of another case in the 10th circuit, maybe? Or did I misunderstand you?

      This case is in Michigan, in the 6th Circuit, and is the follow-up to the Michigan Does v Snyder that the 6th already decided. This case is an attempt to get the state to acknowledge and adhere to the Does v Snyder ruling.

      • TS

        @CR

        I was going off the very first bullet point or paragraph number one said. I read it as this court, this particular District Court, was agreeing with the 6th circuit Court of appeals and saying it’s unconstitutional. I read that as an additional ruling stating that was fact. I may have misunderstood that, but that’s how it came across to me when I initially read the post of the judgment. If it was an additional Court agreeing with those facts, I would hope that the 10th circuit in Denver could get it because they’ve recently got additional rulings submitted after the fact, earlier this year supporting the unconstitutional nature.

        Hence, that’s why I said if my thinking is off, please advise.

    • AJ

      @TS:
      Following up on what @CR posted, this is the resolution to the original filing in the Eastern District of Michigan. Part of that case was decided, part appealed (which became Snyder at the 6th). This is the final tying up of the original lower case and the appealed portion the 6th decided.

      To all: I still believe that even if the Legislature doesn’t act, the Governor and/or AG will. Given the amicus from the Betts/Snyder mini-arguments at MI SC, the Executive branch appears to get it. And with the MI AG outright saying in court documents that registries don’t work, I can easily see her saying she and her office will comply with the Federal Court’s ruling, no matter the Legislature. And truly, won’t it be the Executive Branch that gets in hot water with the Judicial (Fed Court, here) for enforcing a law declared unconstitutional? IOW, I think unless the Executive branch chooses to thumb its nose at the Federal Judiciary, it’s game over in 90 days.

  3. Tim

    Seems a desperate attempt to ” save” the root of the regime, by limiting the scope of the unconstitutional deprivation of liberty to that increased in 06, 09, 2011 Acts. If we examine the true underlying INTENT of retribution we can acknowledge the regime was far more about the machine database to impose affirmative restraint.

  4. mike r

    So, bottom line here.
    “Under Michigan’s law:
    Offenders have been prohibited from living, working or even standing within 1,000 feet of a school.
    They must immediately register email address or vehicles, plus report to the police as often as four times a year.
    The rules currently apply to all offenders on the registry — even if they’ve gone decades without committing and crimes. ”

    All that waiting, negotiating, and capitulating to the legislature did crap except to prolong the suffering of the individuals that were entitled to immediate relief, as well as losing the chance to really stick it to these politicians and show them some hurt with personal monetary lawsuits for deprivation of rights under color of law, it still ends up taking the judge to order compliance with the original order. Now the legislature is going to sever the ordered parts and those people are going to get relief from those amendments that have been delayed for what, years I believe. And the ACLU will have to file new suits to challenge the rest of the law which is going to be even harder since the legislature is going to try and work it so as the next suit will be upheld. Big chance for change avoided really. We will see I guess as the issue by the Michigan AG, and the court, was also the no individualized assessments.

    • Josh

      @Mike R

      You’re absolutely right about that Mike…this 90 day order could have been filed 6 months ago. All that posturing & “negotiating “ got us to what? This?

  5. Guy

    So what changes specifically are we looking at here? Or at least a guess.

    Shortened registration terms?
    Case by case risk factors?
    School zone restrictions shortened/eliminated?

    • Josh

      I forwarded this to my attorney who was expecting this to be announced and the answer I received matched what my initial reaction was after reading this…..that this has no real teeth and is more of what my boy @Bobby calls “kicking the can down the road” I don’t know what it means in terms of what aspects need to be revised. But to answer your question @Guy I think we’re going to have to wait and see..I suspect a federal judge will order the state to implement whatever changes because I think that’s the way our legislators want it…They can run back to their constituents and say “See, we weren’t soft on crime or pedophiles….the government MADE us change!” That’s just how I see it…I’m curious to see what some of our brighter legal minds come up with on the topic…

      • Tim IN WI

        @Josh,
        When it comes to domestic electronic surveillance the FED judges understand the Saints need it ( warrantless surveillance) to survive. If it were determined by the courts that ” certain uses” were intended in bad faith, as is the case with alleged FISA COURT misuse, the entire covert infrastructure justification would necessarily evaporate. To find the courts limiting STATE’S USE of the database upon bad actors automatically implicates FED USE upon the people whole. Mass data collection is a government function, however the uses of the data are too often political and not about truth.

      • Chuck

        That is the problem. They want the Court to FORCE them. I can’t believe they got denied at the SCOTUS and then said, “Oh it is only an as appilied challenge.” I would have marched to Court the very next day if I was the ALCU and asked the Court to clarify their order.

        • Tim in WI

          @Chuck,
          IMHO, SCOTUS is waiting! For what you ask? Those very few who can attack the regime on the substantive DUE PROCESS challenge in ex post context. Connecticut DPS mentions the timeframe of convictions in that state. Those considered in Connecticut DPS were not legally positioned properly to make such a claim as they’d ALL WAIVED SUBSTANTIVE PROCESSES VIA PLEA on the issue.

          Substantive process includes the right to contest claims civilly, council, trial or hearings notice on the issue. A few, very few indeed, refused to plea and therefore retained rights to trials, testimony, and direct appeal (another substantive opportunity). For ex post registrants with out plea, the right to direct appeal (SOR onus) could not be had since it was not available for the state to ” Lawfully impose or apply at the trial sentence phase. ” OUR constitution merely guarantees opportunities for citizens to contest and NOT outcomes.

          Many pre Whetterling ACT defendants have addressed grievances, most failed and few prevailed, but none yet attached the original act itself in the record. I will do so would in an FTR this year. Given a single wrongful conviction in 92 AND FTR I can attack the regimes in their entirety. SCOTUS (errantly?)upheld the regime based on lack of affirmative disability in the record.

  6. David

    Someone please tell me the Judge added an “or else” to his ruling!
    As in, “You, State lawmakers, have until August __, 2019 to correct the Registry laws and bring them into full compliance with both the State and the Federal Constitutions, OR ELSE all Registry statutes and Registry-affiliated rules, regulations, and requirements will be immediately null and void as of 12:01 a.m., xxday, August ___, 2019.”
    As we all know too well, if there is no “OR ELSE” for politicians, they will hem and haw and get nothing done.

  7. mike r

    Yeah David or Josh, the legislature is most likely going to force the court through the last step and the court is now going to have to sever the statute themselves in a court order. That is exactly what is going to happen as you guys have stated, it is the court that is going to do it, out of the legislature’s hands as far as they are concerned. All this concerns is the 2006 amendments, which is very limited to exactly what I stated above. minus assessments. And like I stated, the ACLU is going to have to file again on the individual assessments as that seems to be what is being kicked down the road. The Michigan AG included the assessment and onerous in-person reporting requirements in her brief, but it appears these are the cans.

  8. Fred D.

    So, now someone tell me how applying the Static 99R to people in California, even when they’ve been years offense-free, to determine “tiers,” is Constitutional?

  9. Bobby

    So it sounds like this is all for not, just more kicking of the can down the street. It’s probably going to be a few more years till this gets resolved if ever, I will be 50 on the 2nd of June, and I have been doing this stupid crap since I was 23 and by the looks and sounds of things I will be doing this crap until I’m dead. I know one thing I will be conducting Tim P. or Ms.Aukerman this coming up week to find out if this is going to get fixed by August 21st, or is it going to drag on for a few more years. It sounds good on paper, but I am not holding my breath.

  10. Bruce

    I would like to hear Janice’s take on what the possibilities and potential outcomes could be.
    Either way,,,,It’s a fight that we all have a dog in!

  11. Bobby @ Janice

    @Janice, I am from Michigan and a pre-sorna registrant that will have 27 years in on the registry June 19th two years longer then I should of been, so I would really like to hear your thoughts on Judge Clelands decision that our Michigan Legislators, have 90 days to revise the registry or else.

    • John

      How come on it longer then supposed to be? My registration does say estimated time on registry or something similar. do they have sole discretion to take me off or leave me on? This stuff is taxing on the health, I was 24 when I got on. Now I’m only 35 and feeling old and feeling old as can be.

      • Bobby @John

        Your still young though, I was 23 when I was put on it in 1992,according to my registration start date and will be 50 on Sunday the 2nd. So it depends if your pre- sora or not, when if you will get of the registry I’m guessing.

  12. Ray

    Does this mean no agreement has been reached between the legislators and ACLU. Few days ago someone mentioned they have a good draft that will change the Michigan sex offender completely. I am confused, can someone please let’s know what’s going on over here.

  13. Bobby

    Hello, ok I ran a cross this from the WAR website, some one asked them a question ,and this was their response The MI ACLU won the case at the MI Supreme Court level. SCOTUS didn’t grant cert (agree to hear the case) so it stook in the state of MI. They took no action to comply. ACLU sued the state of MI. Attorney Journal of MI wrote damning amicus briefs against the registry. now the state has been given an undisuputable directive. So my question is what exactly is a undisputable directive?

    • AJ

      @Bobby:
      It means mandatory compliance. Indisputable = nothing left to discuss or argue about. Directive = A command or order.

      On a side note, many seem only focused on the MI Legislature having to change laws, etc. Let’s take a step back and recall it’s the State of Michigan who is the defendant, not the Michigan Legislature. Indeed, the specific defendant was the Executive branch of the State of Michigan. So it would seem to me that it’s not so much up to the MI Legislature to comply as it is the Governor, AG, MSP, etc. Also, there’s nothing that says a legislature must repeal an unconstitutional law–though courts can declare them null and void. However there are restrictions against the Executive enforcing such laws, and executive officials can be held liable if they go contrary to a known unconstitutional law. (For proof of that, see the recent case law out of the SDNY Federal Court that I posted in reply to @Claudia.)

      I still maintain that regardless what the Legislature does or doesn’t, the MI Executive branch will comply with the court’s opinion. The MI AG has already kind of hinted at that based on her public statements and amicus filing.

  14. Bobby

    @AJ. Thanks, for the explaining it in detail to me, so it sounds like the end is finally here for me and many others on this stupid registry. Again, thanks for the explanation very much appreciated.

  15. bruce

    And Still Nothing from Counsel,,Alot of speculation by Fellows,, Nuthin from Councel,,,Mates!,,Just Sayin!

  16. Dave

    I received a email from Citizens for Justice regarding MI SOR. Ask to be added to the email update list.

    We were expecting this, but now it has happened. Federal District Court Judge Cleland has ordered the state legislature to revise the SORA, and has given a 90 day deadline to get this done. He says that 90 days is reasonable “given that the Does I decision has been final since October 2017”. You can see the actual order by following this link https://www.aclumich.org/sites/default/files/field_documents/055_stip_order_for_decl_judgment_for_90_day_deferral.pdf

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

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

    John
    Michigan Citizens for Justice

    • bruce

      What if Your conviction was in another state prior to 2003, and You Move to Michigan Now would these changes apply to them as well???..If So,, You May see a Great Influx in population density and a mass Migration,,

    • Tim

      Dave,
      The legislature will not likely act at all. They’ve had time to do so and have not. This will force Cleland’s hand, but not local DAs. they maybe forced to drop FTR cases involving the Ex post participants, but they can still be arrested for suspicion of “failure to provide” and end up in court albeit only temporarily. DAs have always had privileges to drop cases.

  17. Ann

    When I was sentenced, I was only required to register for 25 yrs. My 25 yrs is up next year in June. Is this ruling going help me? Or am I going to have to file a petition in my local court citing both this and the prior ruling in my petition? Or will all of this allow me to come off the registry next year? I know this affects so many more than just myself. However, right now I just want to know how it will affect me directly.

    • Bobby

      @Ann,

      Well, My guess, and it’s just a guess like me my conviction was in 1992 before the registry even existed, and my registry start date was in 1995 for also 25 years which would of been over next years as well in June.

      Then it went to life, then my registration start date was moved to my conviction date of 6-19-1992, meaning I will have 27 years in on 6-19-19, which would automatically remove me if the date stays the same, or worst case scenario like you I will have to wait till next June to be removed, but if your situation is anything like mine I don’t believe we or other’s in our situation will have to wait that long. I hope I’m right, hope this helped. if anyone else has a better explanation or suggestion PLEASE feel freeto chime in and correct me.

    • Bobby

      @Ann

      Here is something else that may explain it better I hope this will help you as well

      https://www.aclumich.org/en/know-your-rights/what-you-need-know-about-sex-offender-registry-act-sora

  18. Neil

    I’m on the SOR in Wisconsin. It was for 15 years. 2021 was the year of my release from it. Today, I got a certified letter telling me it’s been extended to life. I have not re-offended and have obeyed the law. I signed a legal binding agreement with the state which they changed without due process. I’m incredibly stressed. It’s the punishment which never ends. I’m not allowed to become a functional member of society.

    • E @ Neil

      Neil, did the WI letter state a reason or a change in statute in WI?

    • Will Allen

      I hope you are aware that is something that only an illegitimate, criminal regime would do. Further, the “people” who did it OR just merely think it is acceptable, are not Americans. They are harassing domestic terrorists who cannot mind their own business or leave other people alone. THAT is a disease in Amerika. Beware of your “neighbors” and people you don’t know. They are very likely enemy combatants.

      When you are dealing with criminal regimes, a plea “agreement” is only binding on one side. The other side has no concern about keeping any agreement and will do whatever it can get away with, even contrary to all known facts and reality.

      • Gralphr

        Having read some of your previous posts, I know you feel that way, but thats just it, THEY ARE AMERICANS! America has always picked someone to be the main bad guy in order to hate and get more laws on the books. First it was Blacks, then gays, then drugs, now its sex offenders. The discrimination towards a segment of the community for scorn and banishment is as American as Apple pie and baseball.

        • Will Allen

          You are exactly right, that IS what Amerika has always been, along with the people in it. Amerika is just as flawed as everyone else and seemingly a lot more so in many areas. Amerikan “exceptionalism” is not exceptional at all. In fact, I’d say our country is pretty full of just hateful, awful people.

          However, for now I think I will continue to call good people who care about actual freedom “Americans”. People who support Registries aren’t. They hate freedom.

          The U.S. could be a great, free country if we trashed Registries, the illegality of all drugs, the illegality of selling $EX, and trying to stop people from controlling their own bodies in general (e.g. allow abortions for ANY reasonable case). For my family, I’ve had enough “government”. I am tired of them, how huge they are, and all of their “laws”. People need to try to mind their own business for once.

  19. Gralphr

    I’m curious how this will affect people from other states who now live in Michigan, to include people convicted federally (federal court or military). After all, they’re ordered to abide by whatever laws the state is enforcing. If one was convicted prior to the year 2000, would it help them, or would the state say they still must follow the Federal governments SORNA?

    • JohnDoeUtah

      I would say it would apply to you. The key here is concerning the coverage of those offenders convicted prior to the passage of SORNA. I to am a UCMJ offender; and, if you strictly read SORNA it applies directly to federal offenders (no interstate travel required to trigger jurisdiction). But, I was convicted prior to SORNAs passage. If the court rules the AG lacked authority to make the inclusion decision, the SORNA would not apply to me, only state law would.

      I’m fine with that because I live in a non-SORNA compliant state that took me off after 10 years (due to their interpretation of their own law regarding jurisdiction and out-of-jurisdiction sex offenses), otherwise I would be a 25-year registrant under SORNA. Interesting part is if I had been convicted of the same offense in state court, I’d have to register here for life.

      • Gralphr

        Thats pretty interesting. Mind if I ask the state you’re in?

        • AJ

          @Gralphr:
          “Thats pretty interesting. Mind if I ask the state you’re in?”
          —–
          Call me crazy, but I’m guessing @JohnDoeUtah is in Utah.

  20. Bobby

    Here is a quick read if anyone is interested. it was from an email I received from Michigan Supreme Court News. http://legalnews.com/detroit/1475056/

  21. Bobby

    Hello everyone,

    I got a very short email from Ms Aukerman just now pertaining to the progress of revising Michigan’s sorna

    So here it is folks: We met today.  It is too early to know what will happen.

    • bill

      Hello Bobby, Hope this is the end of the boogie man law, it’s a waste of time & money. seems to be never ending so much stress on a lot of family’s!!! Thank you for the updates! For some reason, some times my replies don’t go through, have a good day, if possible.

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