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National

MI: ACLU Michigan Attorney Advocates End of Registry; Provides Update on 6th Circuit Decision

In a recent NPR interview, ACLU Michigan attorney Miriam Aukerman stated she believes that sex offender registries should be abolished.  In support of that belief, Aukerman stated that registries are ineffective and make society less safe.

Aukerman criticized both legislators and law enforcement for the current challenges now facing registrants.  Legislators have passed and keep passing new laws because they believe doing so will help them to get re-elected.  Law enforcement spends time and money monitoring people convicted of a sex offense when they should be monitoring those who actually pose a danger to society.  If registries cannot be abolished, they should be reduced by removing all children and by shortening the amount of time individuals should be required to register, according to the ACLU attorney.

Aukerman also discussed the current status of Michigan sex offender laws which were declared unconstitutional by the 6th Circuit Court of Appeals in 2016.  Despite that ruling, the state of Michigan has failed to modify its sex offender laws.

According to the ACLU attorney, she and others are negotiating with the Michigan state legislature about changes to the state’s sex offender laws.  Because the Court has retained jurisdiction of the case, it could issue an injunction preventing enforcement of the state’s sex offender laws if the legislature does not act quickly.

In the closing of the radio interview, Aukerman posed an important question for the public to consider: do you want to be mad (that someone has already been sexually assaulted) or do you want to be safe (from a future sexual assault)? She then added, “if you want to be safe, you don’t want a registry.”

Interview

Join the discussion

  1. R M

    @Will: I know you fight for us but “I would love to have mandatory military service from a person’s 18th birthday…”. Conscription killed most of the 58,000 Americans during Vietnam. They were boys forced to fight a non-winnable war. America lost. We killed more of them than us but in the end communism took over Vietnam. Our involvement was useless. The same is happening in the middle east. It’s not conscription, but rather a post 9-11 conspiracy just to prove there were NO WMD there. Yeah, we searched 50 sites and killed many with no proof.

    “Mandatory military service” dictates North Korea. In America, before it was united, it murdered many blacks who were slaves and many whites defecting from union views. Be confederate or be union… die otherwise. At 18, I didn’t know my ass from a hole in the ground (I joined at 20).

    The military recruits young people as they don’t know the truth yet. To say “I would love to have mandatory military service from a person’s 18th birthday…” is asinine, even from you.

    • Will Allen

      He he, nobody likes big ideas. Much better to just stay close to the status quo and group think.

      I’m not an expert on forced military service. If I ran our military I can’t imagine it would ever be for aggressive purposes. We do need a defensive force. And perhaps we would help out others who are be bullied and murdered? Or we could just leave them to fend for themselves.

      The point more so was that we need defense and people should start being adults by learning some discipline and helping others instead of themselves. Perhaps serve our country and give us all some unity. Seems to work well in some other countries.

      Would it suit you better if it was just 2 years of any service to the country? That would probably work even better. People could mostly pick what they preferred.

  2. Brandon

    This was filed this morning.

    UNITED STATES DISTRICT COURT
    EASTERN DISTRICT OF MICHIGAN
    SOUTHERN DIVISION
    __________________________________________________________________
    JOHN DOES #1-6, on behalf of themselves
    and all others similarly situated,
    File No. 2:16-cv-13137
    Plaintiffs,
    v. Hon. Robert H. Cleland
    GRETCHEN WHITMER1
    , Governor of the Mag. J. David R. Grand
    State of Michigan, and COL. JOSEPH
    GASPAR, Director of the Michigan State
    Police, in their official capacities,
    Defendants.
    __________________________________________________________________
    JOINT STATUS REPORT
    Pursuant to Paragraph 5 of the Court’s Stipulated Order Setting Briefing
    Schedule Pending Legislative Action to Replace or Amend SORA (ECF #60), the
    parties submit this 30-day status report, stating as follows:
    1. The plaintiffs’ Motion for Declaratory and Injunctive Relief, ECF 62, is
    fully briefed. The plaintiffs filed their first brief on September 24, 2019 and the
    respondents filed their response brief on October 22, 2019. The plaintiffs’ filed
    their reply brief on November 12, 2019. The plaintiffs’ motion is scheduled for a
    1
    Pursuant to Fed. R. Civ. Proc. 25(d), Governor Gretchen Whitmer and Michigan
    State Police Director Colonel Joseph Gaspar are automatically substituted for their
    predecessors.
    Case 2:16-cv-13137-RHC-DRG ECF No. 72 filed 11/25/19 PageID.1099 Page 1 of 2
    2
    hearing on February 5, 2020 at 2:00 p.m.
    2. There have been no further follow-up meetings between the parties and state
    stakeholders regarding any legislative resolution. No new meetings regarding a
    legislative resolution have been scheduled.
    3. The parties will file their next joint status report in 30 days.
    Respectfully submitted,
    s/ Alyson L. Oliver (P55020)
    Oliver Law Group P.C.
    363 W. Big Beaver Rd., Suite 200
    Troy, MI 48226
    (248) 327-6556
    notifications@oliverlg.com
    s/ Paul D. Reingold (P27594)
    Michigan Clinical Law Program
    363 Legal Research Building
    801 Monroe Street
    Ann Arbor, MI 48109
    (734) 763-4319
    pdr@umich.edu
    Dated: November 25, 2019
    s/ Miriam J. Aukerman (P63165)
    American Civil Liberties Union
    Fund of Michigan
    1514 Wealthy SE
    Grand Rapids, MI 49506
    (616) 301-0930
    maukerman@aclumich.org
    s/ Daniel Korobkin (P72842)
    American Civil Liberties Union
    Fund of Michigan
    2966 Woodward Avenue
    Detroit, MI 48201
    (313) 578-6824
    dkorobkin@aclumich.org
    Attorneys for Plaintiffs
    s/ Joseph T. Froehlich (P71887) (with
    consent)
    Assistant Attorney General
    Complex Litigation Division
    P.O. Box 30736
    Lansing, MI 48909
    517-335-3055
    froehlichj1@michigan.gov
    Attorney for Defendants

  3. Brandon

    What i gather from this is : There will be no more briefs filed on the motion for the injunction relief. On 02/05/2020 Judge Cleland will rule on docket 62 or he will boot it to a higher court… My opinion would be we will get some relief on the 5th for the 2006 & 2011 Laws that remain in effect after they were ruled un-constitutional 3 f$%#$*& years ago! ….either way I’ll keep you posted …fingers crossed we will make history again just like we did with the death penalty. ….. Thoughts anyone?

    • Josh

      I tend to agree with @Brandon. The way I read it was that there hasn’t been nor will there be anymore negotiations between the two sides. This was them reporting to the judge that there was nothing to report…I’m praying to God so hard that this December verification will be my last….I’m dubious but hopeful. I believe the only place the judge can punt the severability aspect of all this is to the MSC and I really hope that doesn’t happen. Still waiting on the Betts case too….anybody heard anything about that?

  4. MidnightMike

    I’m actually in the Detroit metro area. I have no clue but between here and feb,,, if I find out that the hearing is open to the public,,, I may attempt to attend. PH isn’t that far away. Speculating only I thought maybe the judge will allow oral arguments, but the issue has been briefed to death. Myself,,, I’m worried about severing,,, it’s a possibility they could sever the unconstitutional parts of the law and apply some of the parts that are more arbitrary. That’s what happened in the Pennsylvania case where the guy was awarded $25k for each year in damages. He still has to register but only what was required at the time of his offense. Not all the extra amendments….. I’m also worried that we won’t all just end up registered under Wyatts’s law months after finally being able to breathe again. To begin the battle all over…. Realistically,,, the judge gave the state plenty of time to change the laws if they wanted to insist on keeping us on any sort of “constitutional” registry that might apply. They haven’t budged. He’s already made the decision. EX POST FACTO must cease. I read something in the Betts case saying it would be argued the same time as snyder. That makes me think some sort of larger argument….. maybe oral arguments on both in feb? I know AG Nessle seems to be on our side ish, or at least she seemed to be in her brief submitted in the bets arguments. In any case,,, I hope to hear some groundbreaking ruling in Feb,,,, but I’m not going to hold my breath. This could easily end up spending more years kicked around the courts. I’ll be optimistic tho and hope to go see some sort of groundbreaking ruling. It would sure be nice.

  5. TnT

    Thanks for the updates ! Just keep hoping this judge will undo these unconstitutional laws this state has gotten away with for years applying to its own citizens in most cases years after a conviction has already been served that’s not Just or will it ever be tolerated , This judge needs too Punt ! Lets pray and hope he does. This state has been getting away with this unjust registry for far to long. It helps no one and prevents no crimes . Pain and suffering is all that’s occurred then being able to apply a life sentence to someone with out a judge or jury convicting them is absurd. By mail at that they should have to pay the ones who they have done this too and had no care for their actions . Every year they have applied more and more punishment to citizens or as they would call us registrants , knowing they are punitive in everyway shape and form . With out a judge or jury , that’s crazy to think they could do this ,Years after some ones served their sentence , Michigan I hope you get your A$$,$ handed to you this time .

  6. David

    Okay, so in creating SORNA, Congress allowed the USAG to decide whether it would be applied retroactively. The USAG decided that, yes, it would be applied retroactively. And now the US Supreme Court has declined to rule on a case contesting the AG ability to make such a decision (plaintiffs’ arguing that this was over-delegating Congressional authority to the USAG), thus leaving it in place, correct? So how will that affect Michigan’s situation? (Or maybe it does not affect it at all?)
    Any reply would be appreciated as I am asking out of genuine curiosity.

    • David

      Oops, apparently we are still waiting on a SCOTUS ruling on “Gundy”.

      • CR

        No, we are done waiting for that. On November 25th the results from the conference of November 22nd were published. Gundy rehearing was denied.

        This means that Congress does not violate the constitutional separation of powers and does not offend the current formulation of the SCOTUS non-delegation doctrine by allowing the AG to make up whatever laws (statutes) he likes, and apply them to people who’s offenses predated SORA.

        We are well and truly screwed. Just try to live your life as best you can.

  7. R33

    So nothing until February

  8. Sheldon

    We will have to see what the judge says in feburary. I know a individual who was sentenced in 1990 for csc 1 st degree and they never had to registry. Their crime predated the registry that’s why. The government said the registry was not punitive then why don’t this individual have to register. The government is not forcing them to register maybe I should not registry. What does everybody think about that.

    • Bobby S.

      @Sheldon. I was convicted in 1992, before a registry even existed, and I was so obviously was not sentenced by a judge to register, mine was CSC 2nd, I was on parole from 1994 to 1996, and the State claimed since I was still under their control when the registry was passed that is why I had and continue to register to this day. It’s BULL in my opinion. The Judge in Feb., better do the right thing and start ordering people that were convicted before 2006 and 2011 removed immediately from the registry.

      • bill

        As you know, same here, couldn’t agree more Bobby, thank you for all your updates!!!!

  9. Dave

    Did everyone read the update regarding Michigan?

    https://narsol.org/2019/12/when-will-michigan-do-the-right-thing/

  10. Bobby S.

    @Bill, Thanks for posting this, it sounds like those of us that are 50 or older are going to end up dying still on the registry, because nothing is going to get done. The ACLU, has done a great job, but there is no pressure on the state in my opinion. The State needs to be charged $1,000 a day for every registrant that is eligible due to the 2006 and 2011 amendments being found punishment and unconstitutional. Nessel has already admitted the registry was punishment and unconstitutional, so she and Whitmer need to get together shut down the registry until the Legislature gets off their lazy asses and removes ALL pre-2006 and 2011 registrants from the registry. It’s time to stop playing games with these clowns. This entire thing should of been done and over with 3 years ago. Start charging the state monetary damages and paying the registrants $1,000 a day, for being on a registry that was deemed unconstitutional and punitive.

  11. Bobby S.

    @Everyone,

    I ran across this tonight, and thought I would share it, not exactly sure what it means, but have an idea, it sounds like more waiting on his case though, he is what I found: http://publicdocs.courts.mi.gov/SCT/PUBLIC/ORDERS/148981_53_01.pdf

    Ps @Dave thanks for sharing the update on the 6th, sorry I thought it was Bill and not you, my bad. thanks again though. My Sincere Apologizes.

  12. Brandon

    This was filed today… Just keeping you posted.. this is getting very interesting!!

    UNITED STATES DISTRICT COURT
    EASTERN DISTRICT OF MICHIGAN
    SOUTHERN DIVISION
    __________________________________________________________________
    JOHN DOES #1-6, on behalf of themselves and all others similarly situated,
    File No. 2:16-cv-13137
    Plaintiffs,
    v. Hon. Robert H. Cleland
    GRETCHEN WHITMER, Governor of the Mag. J. David R. Grand
    State of Michigan, and COL. JOSEPH
    GASPAR, Director of the Michigan State
    Police, in their official capacities,
    Defendants.
    PLAINTIFFS’ REQUEST FOR JOINT STATUS CONFERENCE
    The plaintiffs in this case (“Does II”), and the plaintiffs in Does v. Curran, et
    al., File No. 3:18-cv-11935 (“Curran”), a case recently transferred to this Court by
    Judge Lawson, request a joint status conference, stating as follows:
    Overview of the Two Cases
    1. Does II v. Whitmer is a class action. The plaintiffs are six registrants, who
    represent a primary class of approximately 44,000 Michigan registrants, and two
    subclasses of registrants whose offenses predate the 2006 and 2011 SORA amendments. The defendants are Governor Gretchen Whitmer and Michigan State Police
    Director Joseph Gaspar, in their official capacities. There are four claims in the
    case: ex post facto, vagueness, strict liability, and First Amendment. The plaintiffs
    Case 2:16-cv-13137-RHC-DRG ECF No. 73 filed 12/12/19 PageID.1101 Page 1 of 10
    2
    seek declaratory and injunctive relief, but not damages.
    2. Does v. Curran is a Section 1983 action brought by two individual
    registrants. The defendants are Brendan Curran, Otsego County Prosecuting
    Attorney; Mathew Nowicki, Otsego County Sheriff; Ron Puzon, former Otsego
    County Deputy; and Kevin Schriner, a Michigan Department of Corrections
    Probation Officer, in their individual and official capacities; and Governor
    Gretchen Whitmer and Michigan State Police Director Joseph Gaspar, in their
    official capacities. The plaintiffs there allege that parts of SORA are void for
    vagueness, are impossible to comply with, or wrongly impose strict liability. The
    Curran plaintiffs seek damages, in addition to declaratory and injunctive relief.
    Curran, Complaint, R. 1.
    3. Doe #1 in the Curran case is on the registry for a 2008 juvenile offense, and
    Doe #2 is on the registry for a 2010 conviction. Curran, Complaint, R. 1. Both
    Curran plaintiffs are members of the Does II primary class and of the 2006-2011
    ex post facto subclass. Does II, Class Certification Order, R. 46.
    Potential Impact of the Does II Ex Post Facto/Severability Ruling on Curran
    4. In Does II, the Court has already decided liability on the ex post facto claim,
    entering a stipulated declaratory judgment. R. 55. However, the plaintiffs initially
    held off on pursuing injunctive relief in order to give the legislature time to amend
    the statute. Because the legislature failed to act, plaintiffs resumed briefing
    Case 2:16-cv-13137-RHC-DRG ECF No. 73 filed 12/12/19 PageID.1102 Page 2 of 10
    3
    regarding entry of injunctive relief and related severability issues. Those issues
    have been fully briefed, and a hearing is scheduled for February 5, 2020.
    5. This Court’s decision on the Does II ex post facto and severability issues
    could affect the Curran plaintiffs and will narrow the issues in that case, since both
    Curran plaintiffs are members of the 2006-2011 ex post facto subclass. Specifically, if this Court finds that the 2011 amendments are not severable and the statute
    cannot be applied, then the portions of SORA challenged by the Curran plaintiffs
    cannot be enforced against them. In other words, if this Court were to enjoin
    operation of SORA as against the ex post facto subclasses, such an order would
    eliminate the need for the ongoing preliminary injunction entered by Judge
    Lawson, and at that time could result in the dismissal of the duplicative claims in
    Curran.
    6. It is also likely that a decision by this Court holding that the 2011 amendments are not severable and voiding the statute for pre-2011 registrants, would
    trigger legislative action at long last. Such legislation might well affect the Curran
    plaintiffs’ other claims as well.
    7. Accordingly, the Court may wish to decide the ex post facto/severability
    issues in Does II before it turns to Curran.
    Timing and Relationship of the Vagueness and Strict Liability Issues in
    Does II and Curran
    8. As to the non-ex post facto claims, the Curran plaintiffs seek similar relief
    Case 2:16-cv-13137-RHC-DRG ECF No. 73 filed 12/12/19 PageID.1103 Page 3 of 10
    4
    to that sought by the Does II plaintiffs, namely injunctive relief on the vagueness
    and strict liability claims against the Governor and Director of the Michigan State
    Police. The Curran plaintiffs, however, also brought claims not brought in the
    Does II class action – including claims for damages and injunctive relief against
    prosecutors, a local law enforcement officer, and a probation officer. Those claims
    go beyond the scope of the claims raised in Does II (which limited its claims only
    to what had already been decided by this Court and by the Sixth Circuit in Does I,
    and which claims were brought only against the two state defendants, namely the
    Governor and the Director of the Michigan State Police).
    9. The Does II plaintiffs intend to file a motion for partial summary judgment
    soon on their vagueness, strict liability, and First Amendment claims. The plaintiffs will be seeking declaratory and injunctive relief consistent with this Court’s
    holdings in Does I. As the situation of the Curran plaintiffs demonstrates, class
    members continue to face prosecution, despite this Court’s prior decision that
    portions of SORA are unconstitutionally vague, cannot impose strict liability, and
    violate the First Amendment.
    10. Two of the claims that will be addressed in the forthcoming motion for
    partial summary judgment—vagueness and strict liability—are also at issue in
    Curran. Because the claims in the two cases are similar (though they are not
    identical), and because the Curran plaintiffs have filed motions that are fully
    Case 2:16-cv-13137-RHC-DRG ECF No. 73 filed 12/12/19 PageID.1104 Page 4 of 10
    5
    briefed (and pending) that overlap with the plaintiffs’ soon-to-be-filed motion for
    partial summary judgment as to the primary class (regarding vagueness, strict
    liability, and the First Amendment), there may be good reason either to consolidate
    Curran with Does II, or otherwise to join the cases, or to place them on parallel
    tracks, for purposes of the pending or upcoming motions.
    11. Moreover, as noted above, this Court’s decision in Does II may impact
    whether a decision on the other claims – either in Does II or in Curran – is
    necessary. For example, the legislature could respond to an ex post facto/
    severability decision with a new statute. It might therefore make sense for the
    Court to proceed with the scheduled hearing on the ex post facto/severability issue,
    before addressing the other claims in Does II and before deciding Curran.
    12. If this Court’s decision on the ex post facto issue does not trigger legislative
    action, this Court will then likely need to decide the forthcoming partial summary
    judgment motion in Does II, as well as the motions in Curran.
    13. A decision in Does II on vagueness and strict liability will also affect the
    Curran plaintiffs. Although this Court’s ruling in Does II will not address all of
    the Curran plaintiffs’ claims for relief as to all of the defendants in that case, a
    Does II decision regarding injunctive relief on vagueness and strict liability will
    narrow the issues in Curran. Therefore, this Court may wish to decide those issues
    in the Does II case either before or at the same time as the Curran case.
    Case 2:16-cv-13137-RHC-DRG ECF No. 73 filed 12/12/19 PageID.1105 Page 5 of 10
    6
    Maintaining the Preliminary Injunction in Curran Pending a
    Decision in Does II
    14. During the pendency of briefing on the non-ex-post-facto claims in Does II,
    this Court should leave in place the preliminary injunction entered in Curran by
    Judge Lawson. While the Curran defendants have argued that the case should be
    dismissed because the Curran plaintiffs are members of the Does II class action, it
    would be inequitable to do so until the Court can decide on the forthcoming motion
    in Does II for injunctive relief on the vagueness and strict liability claims.
    15. Absent the preliminary injunction entered by Judge Lawson, the Curran
    plaintiffs are at imminent risk of being prosecuted and/or losing their homes, even
    though both ought to be covered by this Court’s decision that the school exclusion
    zones are unconstitutionally vague under the Due Process Clause. Both of the
    Curran plaintiffs were threatened with prosecution if they did not move from a
    residence that the defendants said was within 1,000 feet of a school, but the
    plaintiffs believed was not. One plaintiff bought a home – allegedly after first
    clearing the purchase with local law enforcement – before being told he had to
    move or face prosecution. As to this plaintiff, the prosecutor has explicitly refused
    to recognize the authority of this Court’s decision in Does #1-5 v. Snyder, 101 F.
    Supp. 3d 672 (2015), and has continued to threaten prosecution of the plaintiff for
    the alleged SORA violation. The prosecutor has been clear that he intends to move
    forward with prosecution as soon as the injunction is lifted. The other plaintiff uses
    Case 2:16-cv-13137-RHC-DRG ECF No. 73 filed 12/12/19 PageID.1106 Page 6 of 10
    7
    Veteran Affairs (VA) benefits to pay his rent, and the VA approved the rental unit.
    When he moved into the home, he was able to register it without issue with the
    Michigan State Police, but was later told by a probation officer that his home was
    within an exclusion zone. Because he is no longer on probation, the threat of
    prosecution to this plaintiff may not be as imminent. He has, however, been given
    no promises that he would not be prosecuted if the injunction was lifted and
    therefore remains in jeopardy.
    16. It will take some time until this Court has the opportunity to decide on
    class-wide injunctive relief for the vagueness and strict liability claims in Does II.
    The Curran plaintiffs should not lose their protection against imminent prosecution
    because class counsel in Does II initially relied on the state’s representations that
    legislative reforms would address not only those aspects of SORA held unconstitutional by the Sixth Circuit, but also by this Court, and therefore deferred seeking
    injunctive relief as to the prospective claims. Without the safety of an ongoing
    preliminary injunction, the Curran plaintiffs would be in dire jeopardy of prosecution, contrary to the decisions in Does I.
    17. While this Court had dismissed a number of SORA challenges filed independently by class members, those cases were very different from Curran. In
    some of those cases, the claims of the “independent” plaintiffs were close enough
    to the claims of the primary class and the ex post facto subclasses here that the
    Case 2:16-cv-13137-RHC-DRG ECF No. 73 filed 12/12/19 PageID.1107 Page 7 of 10
    8
    Court dismissed the lawsuits as redundant, because those independent plaintiffs
    could get effectively the same relief that they were seeking via the class action.
    That is not true for the Curran plaintiffs, who not only face imminent prosecution,
    but also seek relief against additional defendants not named in Does II, and seek
    damages, which are not at issue in Does II. Whether or not this Court ultimately
    decides that certain of the Curran plaintiffs’ claims are subsumed in Does II, it
    should wait to make that decision until it can adjudicate those claims in Does II.
    Request for a Status Conference
    18. Accordingly, the plaintiffs in both cases request a status conference to help
    the parties and the Court decide how best to proceed.
    19. The plaintiffs in both cases are prepared to appear by phone or in person, as
    the Court deems appropriate. The Court has scheduled a status conference in
    Curran for December 17. Counsel in Does II are prepared to participate at that
    time if that is most convenient for the Court. (Lead counsel in Curran is unavailable on December 17, but substitute counsel would be available.)

    Case 2:16-cv-13137-RHC-DRG ECF No. 73 filed 12/12/19 PageID.1108 Page 8 of 10
    9
    Respectfully submitted,
    s/ Alyson L. Oliver (P55020)
    Oliver Law Group P.C.
    363 W. Big Beaver Rd., Suite 200
    Troy, MI 48226
    (248) 327-6556
    notifications@oliverlg.com
    s/ Paul D. Reingold (P27594)
    Michigan Clinical Law Program
    363 Legal Research Building
    801 Monroe Street
    Ann Arbor, MI 48109
    (734) 763-4319
    pdr@umich.edu
    Dated: December 12, 2019
    s/ Miriam J. Aukerman (P63165)
    American Civil Liberties Union
    Fund of Michigan
    1514 Wealthy SE
    Grand Rapids, MI 49506
    (616) 301-0930
    maukerman@aclumich.org
    s/ Daniel Korobkin (P72842)
    American Civil Liberties Union
    Fund of Michigan
    2966 Woodward Avenue
    Detroit, MI 48201
    (313) 578-6824
    dkorobkin@aclumich.org
    Attorneys for Plaintiffs
    Case 2:16-cv-13137-RHC-DRG ECF No. 73 filed 12/12/19 PageID.1109 Page 9 of 10
    10
    Certificate of Service
    On December 12, 2019, the plaintiffs filed the above motion and brief for
    partial summary judgment using the Court’s ECF system, which will send sameday email service to all counsel of record.
    s/ Miriam J. Aukerman
    Attorney for Plaintiffs
    Case 2:16-cv-13137-RHC-DRG ECF No. 73 filed 12/12/19 PageID.1110 Page 10 of 1

  13. R33

    Matbe I’m wrong but it sounds to as if we will get relife

    • Josh

      @R33….if the state is ever forced to change the law you can bet on that. Look at Pennsylvania

  14. Don’t tread on me

    Don’t get too excited as yet. While this sounds really good, it is just a motion. I’m not trying to sound negative. This motion is worded carefully by “our side” attorneys. It is designed to argue our point of view. A response should come from the State’s side soon. It will completely slaughter what you just read. This whole thing is a process

  15. R33

    Has the state said anything yet

    • Dave

      Brandon is the one that has a pacer membership and keeps us Michigan folks in the loop.

      So many of us are from Michigan. I bet 25% of the active posters are from Michigan.

      I think we need a Michigan chat. I spoke to Katie about it. Folks not living in Michigan often don’t understand all the traps Michigan folks face.

      Michigan has become just a giant land mine of a state in traps. Brandon is such a nice guy he will check for us and post as soon as he finds out I’m sure.

      Many of these other states moderators censor you for zero reason and tell you the traps you fall in aren’t real. Lol, people from Michigan know the traps are real and tell the ACLU. Fortunately the ACLU believes the traps are real.

      • Josh

        @Dave…..you make a good point about us having our own forum. That would be awesome. However, I don’t know of one and this issue of the registry is a larger then just Michigan. Although I am a Michigan registrant I am extremely interested/disgusted by what is happening across the country to other citizens who are being oppressed/discriminated against. I know that this was started as a California -centric forum but I’m thankful to Janice for letting ALL of us use it.
        As for all “traps” you’re speaking of….I didn’t understand what you’re trying to get at? Our registry laws are hard but there are other states that are worse…marked driver’s licenses , SVP designations, parental rights terminations, cohabitation rules, and so many more. That has never been my experience and depending on where in Michigan you live you’ll find that many law enforcement forces have largely backed off due to that arrest/prosecute at your own risk memo that was made public a couple of years ago.
        Lastly, we are one of the few states that have a major legislative “win” in hand and yet there has been no real or tangible legislative change in 4 years. I think that qualifies us to continue discussing this issue on a national forum. I’m thankful for @Brandon and his pacer account and the other posters who can break the legal filings/motions down in a way for people like me to understand. Thank you Janice & team! Thank you to everybody who contributes and provides differing opinions and points of view! It’s all valuable. I also want to wish everybody a very merry CHRISTMAS! Hopefully the new year sees many victories in this common struggle we share…

  16. TnT

    These registries are a very dark place to be, Couldn’t have said it any better Josh & Dave , Very seldom a lot of hope and belief for us million people on this unconstitutional registry, but this site does a great job of exposing the truth and helping those of us who struggle because of lack of funds and resources , Thanks Janice !! and everyone who supports constitutional reform to a cruel laws and corrupt systems. Michigan does need a good team like they have to support those of us who have no where to turn. It is the holiday season and its so hard to be joyful but hope and faith is all a lot of us have left to hang onto . Happy Holidays too all for what its worth . Hang in there everyone and lets hope for change in 2020 !

  17. David

    @ Brandon: The status conference was scheduled for December 17th. Is there any news?

  18. Brandon

    Well, it appears that the status conference was held yesterday but there is no report, just a minute update on pacer. Not sure why there is not a report. All the info i can give is the last view-able document was the last one i posted on here. I will check it daily to see if a report appears.

  19. David

    Thanks for keeping us updated, Brandon. 🤞 Fingers crossed! Awaiting good news! 👍

  20. Gary

    Here is the order that was filed yesterday on pacer, if someone could translate for us please 🙂

    ORDER SETTING DATES FOR BRIEFING
    On December 17, 2019, the court held a joint status conference for the cases of Does v. Snyder, No.16-13137 (“Does II”) and Does v. Curran, No. 18-1935 (“Curran”), which was recently transferred to this court as a companion to Does II. The parties agreed at the conference that the equitable claims of the Curran Plaintiffs are subsumed by the equitable claims currently being litigated by the Does II certified class. The court explained that it will dismiss the equitable claims in Curran upon receipt of the parties’ anticipated stipulated order to extend the preliminary injunction issued in Curran during the pendency of Does II. The court expects the parties to promptly begin work on formulating such a proposed order.
    During the conference, Plaintiffs’ counsel in Does II stated that by Monday, December 23, 2019, they would file a motion addressing their remaining constitutional claims related to vagueness, strict liability, and the First Amendment. The parties agreed to a briefing schedule that will potentially allow the remaining constitutional challenges to be heard at the motion hearing for the ex post facto Does II claims currently scheduled for February 5, 2020. Accordingly, IT IS ORDERED that the Does II Plaintiffs’ motion on the remaining constitutional claims is due December 23, 2019.
    IT ORDERED that Defendants’ response is due January 13, 2020. FINALLY, IT IS ORDERED that Plaintiffs’ reply is due January 24, 2020.
    s/Robert H. Cleland
    ROBERT H. CLELAND
    UNITED STATES DISTRICT JUDGE

    • Don’t tread on me

      It sure looks to me like the court has demanded an end to this nonsense by no later than January 24. I would suspect a ruling from the court will be made after that.

      • R33

        @dont tread on me. I think your right. Cuz to me it sounded like the state is finally trying

  21. TnT

    Be nice to try to get a life back after 30 long years of suffering , after I received a 1 year 3 sentence by a judge in 1992 when I was 20 years old , 3 years before there was ever a registry ,all because lack of funds and the metoo movement , they would convict with no more then hear say, didn’t need a day, a time, or a place ,or even any evidence , then years later a renegade attorney general started thowing amendments left and right to this expost facto punishment they applied to me years after I served my sentence, I was thrown back onto into this system “only because they could” no new crime , now I am 48 years old , long painful life , then received a life sentence 20 years after that conviction in the mail to life. when will this end, I hope no young men ever have to feel or live the life I have , I hope this judge changes the future for many young men before they are entangled in this web of a life of a lost soul walking this earth. In America after you serve your sentence you should have the right to change and to grow to become a better person to your self and your fellow citizens but this registry takes all that away. But the truth is the laws that convict many of us is nothing more then he says she says B.S. that has to change as well .

  22. Brandon

    This was filed today

    UNITED STATES DISTRICT COURT
    FOR THE EASTERN DISTRICT OF MICHIGAN
    SOUTHERN DIVISION

    JOHN DOE,
    Plaintiff,
    v. Case No. 18-11935
    BRENDAN P. CURRAN, et al.,
    Defendants.
    /
    ORDER SETTING DATE FOR SUBMISSION OF PROPOSED STIPULATED ORDER
    On December 17, 2019, the court held a joint status conference for the cases of
    Does v. Snyder, No.16-13137 (“Does II”) and Does v. Curran, No. 18-1935 (“Curran”),
    which was attended by counsel for all named parties in both cases. The Curran case
    was recently transferred to this court as a companion to Does II.
    At the conference, the parties discussed the overlapping legal claims in Curran
    and Does II. The parties agreed that the equitable claims in Curran are subsumed by
    the equitable claims currently being litigated by the Does II certified class. Based on the
    agreement of the parties, and to increase docket efficiency and clarity, the court
    explained that it will dismiss the equitable claims of the Curran Plaintiffs. However, the
    court also explained that it would not dissolve the preliminary injunction currently in
    place in Curran while Does II is pending, and the parties agreed to submit a proposed
    stipulated order to that effect. Upon receipt of the parties’ anticipated stipulated order to
    extend the preliminary injunction, the court will dismiss the equitable claims in Curran.
    The court expects the parties to promptly begin work on formulating such a proposed
    order. Accordingly,
    Case 3:18-cv-11935-RHC-DRG ECF No. 88 filed 12/18/19 PageID.1196 Page 1 of 2
    2
    IT IS ORDERED that the parties submit a proposed stipulated order addressing
    the continuation of the preliminary injunction by January 3, 2020.
    s/Robert H. Cleland
    ROBERT H. CLELAND
    UNITED STATES DISTRICT JUDGE
    Dated: December 18, 2019
    I hereby certify that a copy of the foregoing document was mailed to counsel of record
    on this date, December 18, 2019, by electronic and/or ordinary mail.
    s/Lisa Wagner
    Case Manager and Deputy Clerk
    (810) 292-6522

  23. Brandon

    Different information I like that! we are 100% now!

    • Bobby S.

      @Brandon. Thank you for posting these up dates, it all sounds good on paper, but what does it all really mean in layman terms, just like TNT and Bill and Josh, and others I was convicted back in 6-19-1992, I was 23 years old then, now 50 years. As many know there was no such thing as a registry back then, so I was not told to register by a judge, therefore violating my constitutional right to due process and other constitutional rights as well. So I hope this is finally close to being over, and I won’t have to check in, in March and cough up another $50 bucks of extortion money.

    • R33

      So what does this one mean

  24. TnT

    Not to mention the fact is the 1995 amendment they forced on MANY OF US, states.. they can not share any of the info with no one but law enforcement or they could be held responsible ……….??? Now how could they not be liable for 30 years of smearing and pain and suffering when they got only away with it by claiming it not punitive ??? Everyone know damn well its the most punitive thing a person could be subjected too. Now how and the hell can they not be held accountable ??? There are thousands of us who lost our constitutional rights away years and years ago, who have been living like this only because they can retroactively apply punishment. Last I knew was you had the right to due process if anyone trys to apply punishment in America you had a right to a trial with a judge or a jury . So crazy how they got away with this in the first place and for so long is just crazy .

  25. Brandon

    The way i see this going down is the preliminary injunction is going to get relief or at least a proposed order by the 3rd of January..everyone else that is not, but is registered you will get relief from vagueness,strict liability, and the First Amendment. on the 5th of February. we will see many briefs to come and a battle in the legal field. we are backed by the best and this state is leading this war.. right along with Pennsylvania.

    • Josh

      @Brandon…I didn’t understand what you were trying to say. Did you mean the ex post facto class would see the temporary injunctive relief or a proposed order? Then the other sub classes of registrants (post 2011) would see the relief you mentioned above? Just looking for clarification… Appreciate your willingness to share your pacer account with all of us and get those updates!

    • Don’t tread on me

      Brandon, I think you have nailed it. I’m not sure I want to pop the cork just yet but I believe you might be right. The dirty bastards might pull a fast one. I guess I’ve become a pessimist. The two things government loves are in jeopardy: Money and control

      • Guy

        As far as Michigan goes

        What exactly is going on and when In simple terms.

        • Don’t tread on me

          In a nutshell? Relief from some if not all of the registry for some of the 44000+. Over the next two months there have been ultimatums given to the state by the court. It’s complicated but some of those on the registry will be immediately released if their crimes are more than 25 years old. The rest should experience some relief of the burdens of registering. Reading back up this thread will help you understand

  26. Bobby S.

    Hello Everyone,

    I received this email today from Tim P. from the ACLU, not sure exactly what it means though, but here it is

    Docket Text:
    ORDER Setting Dates for Briefing ( Does II Plaintiffs’ Motion on Remaining Constitutional Claims due by 12/23/2019; Defendants’ Response due by 1/13/2020, Plaintiffs’ Reply due by 1/24/2020, Motion Hearing set for 2/5/2020 02:00 PM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (LWag)

    This will not slow things down. And this is not a road block as a matter of fact we look on it as a good thing since some of the other issues in the case will get answered sooner.  You should understand however that the court has the option of changing dates and times, and that no one knows how the court will rule.  Please understand also that just because we already have a ruling from the 6th circuit  court we could see some changes from this court.  

    Respectfully Tim P ACLU of Michigan SOR Specialist 

    @Brandon, Thank you for sharing all the information and updates from your pacer account, very much appreciated, like @Josh, I am also a bit confused by your statement are you saying the injunction should include all pre-sorna registrants, but not post sorna registrants. Thanks again for all the updates.

    • Tim in WI

      @Tim P.
      The affect of judicial limit rendered upon the balance achieved in the separation of powers meets Marbury V Madison 5 US.

      We witness the game changer a database driven infrastructure is to all humanity for better or worse. The impact of plain indenture repackaged apparent. But why deny the obvious? Why opt for the term ” registry ” when it is a plain database, a place, a property? What is rendered if not a commodity taken to market by hired men. Is Artificial Intelligence AI > Human? Some would hope so; some would know better.

      Far more about the political potential of the machine than republic. SOR is but one iteration, their are an infinite many, some which result in the demise of man. Just don’t say you didn’t try.

  27. Brandon

    This was filed yesterday..seems pretty solid.

    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1120 Page 8 of 41
    UNITED STATES DISTRICT COURT
    EASTERN DISTRICT OF MICHIGAN
    SOUTHERN DIVISION
    __________________________________________________________
    JOHN DOES #1-6, on behalf of themselves
    and all others similarly situated,
    File No. 2:16-cv-13137
    Plaintiffs,
    v. Hon. Robert H. Cleland
    GRETCHEN WHITMER, Governor of the Mag. J. David R. Grand
    State of Michigan, and COL. JOSEPH
    GASPAR, Director of the Michigan State
    Police, in their official capacities,
    Defendants.
    ________________________________________________________________
    PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION
    FOR PARTIAL SUMMARY JUDGMENT
    ON BEHALF OF THE PRIMARY CLASS

    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1121 Page 9 of 41
    ii
    TABLE OF CONTENTS
    CONTROLLING OR MOST APPROPRIATE AUTHORITIES ………………….. vi
    INTRODUCTION…………………………………………………………………………………….. 1
    PROCEEDINGS TO DATE ………………………………………………………………………. 1
    LEGAL STANDARD ……………………………………………………………………………….. 3
    ARGUMENT …………………………………………………………………………………………… 3
    I. SORA Violates Plaintiffs’ Due Process and First Amendment Rights. ………. 4
    A. SORA Is Unconstitutionally Vague. ………………………………………………… 4
    1. SORA Does Not Provide Clear Notice to Registrants or
    Adequate Guidance to Law Enforcement About How to
    Determine the Location of Exclusion Zones. …………………………………. 6
    2. SORA Does Not Provide Clear Notice to Registrants or
    Adequate Guidance to Law Enforcement About What
    Constitutes “Loitering.” ……………………………………………………………… 9
    3. SORA Does Not Provide Clear Notice to Registrants or
    Adequate Guidance to Law Enforcement About Reporting
    Requirements. …………………………………………………………………………..11
    B. SORA’s Strict Liability Provisions Violate Due Process Because
    They Impose Harsh Penalties for Innocent Conduct. …………………………12
    C. SORA’s Provisions on Internet Reporting Violate the First
    Amendment, Both Directly and by Incorporating Lifetime
    Reporting. ……………………………………………………………………………………15
    II. A Permanent Injunction Is Warranted. ………………………………………………….16
    A. The Court Should Grant a Permanent Injunction Barring
    Enforcement of the SORA Provisions that Violate Due Process
    and the First Amendment. ……………………………………………………………..16
    B. In the Alternative, the Court Should Grant a Preliminary
    Injunction. ……………………………………………………………………………………19
    C. Questions Involving Relief for the Ex Post Facto Subclasses
    Should Not Stall Relief for the Primary Class. …………………………………20
    III. The Court Should Order Notice. …………………………………………………………..24
    CONCLUSION ……………………………………………………………………………………….25
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1122 Page 10 of 41
    iii
    INDEX OF AUTHORITIES
    Cases
    ACLU of Kentucky v. McCreary County, 354 F.3d 438 (6th Cir. 2003) ………. 18, 19
    Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320
    (2006) …………………………………………………………………………………………………….23
    Caspar v. Snyder, 77 F. Supp. 3d 616 (E.D. Mich. 2015) …………………………………20
    Celotex Corp. v. Catrett, 477 U.S. 317 (1986) …………………………………………………. 3
    City of Chicago v. Morales, 527 U.S. 41 (1999) ………………………………………………. 9
    Colautti v. Franklin, 439 U.S. 379 (1979) ……………………………………………….. 12, 17
    Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101 (6th Cir. 1995) ……………..4, 11
    Compaan v. Snyder, 15-cv-01140 (W.D. Mich.) ……………………………………………..22
    Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) ………………….. 17, 20
    Does #1-2 v. Curran, 1:18-cv-11935 (E.D. Mich.) ……………………………….. 4, 17, 21
    Does #1-5 v. Snyder, 101 F. Supp. 3d 672 (E.D. Mich. 2015) …………………… passim
    Does #1-5 v. Snyder, 101 F. Supp. 3d 722 (E.D. Mich. 2015) …………………… passim
    Elonis v. United States, 135 S.Ct. 2001 (2015) ……………………………………………9, 10
    G & V Lounge, Inc. v. Mich. Liquor Control, Comm’n, 23 F.3d 1071 (6th
    Cir. 1994) ………………………………………………………………………………………… 19, 20
    Grayned v. City of Rockford, 408 U.S. 104 (1972) …………………………………………… 5
    Harris Stanley Coal & Land Co. v. Chesapeake and O.Ry.Co., 154 F.2d 450
    (6th Cir. 1946) …………………………………………………………………………………………18
    Johnson v. United States, 135 S.Ct. 2551 (2015) ……………………………………………… 5
    Kolender v. Lawson, 461 U.S. 352 (1983) ……………………………………………………… vi
    Lambert v. California, 355 U.S. 225 (1957) ……………………………………………………13
    Lee v. City of Columbus, 636 F.3d 245 (6th Cir. 2011) …………………………………….16
    Liparota v. United States, 471 U.S. 419 (1985) ……………………………………….. 13, 14
    Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566 (6th Cir.
    2002) ……………………………………………………………………………………………………..18
    Peoples Rights Organization v. City of Columbus, 152 F.3d 522 (6th Cir.
    1998) ………………………………………………………………………………………………………. 5
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1123 Page 11 of 41
    iv
    Preston v. Thompson, 589 F.2d 300 (7th Cir. 1978) …………………………………. 18, 20
    Roe v. Snyder, 240 F. Supp. 3d 697 (E.D. Mich. 2017) …………………………….. 17, 21
    Smith v California, 361 U.S. 147 (1959) ………………………………………………………..12
    Springfield Armory, Inc. v. City of Columbus, 29 F.3d 250 (6th Cir. 1994) …………. 5
    Stanley v. Turner, 6 F.3d 399 (6th Cir. 1993) …………………………………………… 12, 13
    Tyson Foods v. McReynolds, 865 F.2d 99 (6th Cir. 1989) ………………………………..20
    United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010) ……………….13
    United States v. Freed, 401 U.S. 601 (1971) …………………………………………………..13
    United States v. Lanier, 520 U.S. 259 (1997) …………………………………………………… 6
    United States v. Suarez, 263 F.3d 468 (6th Cir. 2001) ………………………………………. 3
    United States v. U.S. Gypsum Co., 438 U.S. 422 (1978) …………………………………..12
    United States v. Wulff, 758 F.2d 1121 (6th Cir. 1985) ……………………………………..13
    United States v. X-Citement Video, Inc., 513 U.S. 64 (1994) …………………………….12
    Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489
    (1982) …………………………………………………………………………………………………..5, 6
    Statutes
    M.C.L. § 28.721 …………………………………………………………………………………………… 1
    M.C.L. § 28.724a ………………………………………………………………………………………..14
    M.C.L. § 28.725 ………………………………………………………………………………………….15
    M.C.L. § 28.725(1)(g) ………………………………………………………………………………….10
    M.C.L. § 28.725a ………………………………………………………………………… 6, 14, 24, 25
    M.C.L. § 28.727(1)(f) ………………………………………………………………………………….11
    M.C.L. § 28.727(1)(h) ………………………………………………………………………………….11
    M.C.L. § 28.727(1)(i)…………………………………………………………………………………..11
    M.C.L. § 28.727(1)(j)…………………………………………………………………………………..10
    M.C.L. § 28.729 ………………………………………………………………………………………6, 14
    M.C.L. § 28.733 …………………………………………………………………………………………… 8
    M.C.L. § 28.734 …………………………………………………………………………………………… 6
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1124 Page 12 of 41
    v
    M.C.L. § 28.735 ………………………………………………………………………………………6, 14
    Other Authorities
    Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55 (1933) …………………………..13
    Rules
    Fed. R. Civ. P. 23(c)(2)(A) …………………………………………………………………………..24
    Fed. R. Civ. P. 23(d)(1)(B) …………………………………………………………………………..24
    Fed. R. Civ. P. 56 …………………………………………………………………………………………. 3
    L.R. 83.40(a)(3) ………………………………………………………………………………………….21
    L.R. 83.40(b) ……………………………………………………………………………………….. 21, 22

    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1125 Page 13 of 41
    vi
    CONTROLLING OR MOST APPROPRIATE AUTHORITIES
    Does #1-5 v. Snyder, 101 F. Supp. 3d 672 (2015)
    Does #1-5 v. Snyder, 101 F. Supp. 3d 722 (2015)
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1126 Page 14 of 41
    1
    INTRODUCTION
    In 2015, this Court found numerous aspects of Michigan’s Sex Offenders
    Registration Act (SORA), M.C.L. § 28.721 et seq., to violate due process and the
    First Amendment. Does #1-5 v. Snyder (Does I), 101 F. Supp. 3d 672 (E.D. Mich.
    2015); 101 F. Supp. 3d 722 (E.D. Mich. 2015). More than four years later, defendants continue to apply those same unconstitutional provisions to tens of thousands
    of registrants as if this Court had never ruled.
    Because Michigan’s legislature has failed to bring SORA into compliance
    with the Constitution, plaintiffs ask this Court to apply its Does I decisions classwide. Specifically, the Court should declare unconstitutional the same provisions it
    found to be unconstitutional in Does I, permanently enjoin their enforcement, and
    require notice to class members, prosecutors, and law enforcement.
    PROCEEDINGS TO DATE
    This case was filed in August 2016, to ensure that the Does I decisions were
    applied to all Michigan registrants. The second amended complaint, filed in June
    2018, and which is verified, R.34, seeks class-wide relief on four issues on which
    the Does I plaintiffs had prevailed, either before this Court or the Sixth Circuit: (1)
    vagueness; (2) strict liability; (3) First Amendment; (4) Ex Post Facto Clause. Id.
    In June 2018, plaintiffs moved for class certification. R.35. In September
    2018, the Court certified a primary class of all people who are or will be subject to
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1127 Page 15 of 41
    2
    registration under SORA, and two ex post facto subclasses (one for pre-2006
    registrants and one for pre-2011 registrants). Stip. Class Cert. Order, R.46.
    In the meantime, plaintiffs moved for partial summary judgment as to the ex
    post facto subclasses, seeking declaratory and injunctive relief. Motion, R.40.
    Plaintiffs then invited defendants to work together to develop legislation that the
    parties could jointly send to the legislature—legislation which the parties believed
    would address not only the ex post facto issues, but also the other constitutional
    infirmities in SORA identified by this Court. The Court postponed briefing repeatedly to permit legislative negotiations. Sched. Orders, R.41, 44, 45, 47, 51, 54.
    In May 2019, the Court entered a stipulated order declaring the 2006 and
    2011 amendments to be unconstitutional as to the ex post facto subclasses. The
    Court deferred rulings on injunctive relief “to avoid interfering with the Michigan
    legislature’s efforts to address the Does I decisions.” Decl. Judgment and Order for
    90-Day Deferral. R.55, Pg.ID#783. But the state again failed to take advantage of
    the opportunity provided by this Court to address SORA’s constitutional problems
    through legislation, and in August 2019 this Court set a new briefing schedule.
    Stipulated Order, R.60, Pg.ID#795. The parties have now briefed the issues that
    relate to the ex post facto subclasses, and the Court has set argument on that
    motion for February 5, 2020. Briefs and Scheduling Notice, R.62, 66, 69, and 71.
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1128 Page 16 of 41
    3
    What remains to be decided are the three claims (vagueness, strict liability,
    and First Amendment) that relate to the primary class (comprising all registrants).
    LEGAL STANDARD
    Summary judgment is proper if “there is no genuine issue as to any material
    fact and the moving party is entitled to judgment as a matter of law.” Celotex Corp.
    v. Catrett, 477 U.S. 317, 322 (1986). A statute’s constitutionality is a question of
    law. See United States v. Suarez, 263 F.3d 468, 476 (6th Cir. 2001).
    Summary judgment is proper because plaintiffs’ complaint is verified and
    there are no facts in dispute. Defendants continue to enforce SORA against plaintiffs and primary class members even though the challenged provisions violate the
    Due Process Clause and the First Amendment under this Court’s holdings in Does
    I. Accordingly, plaintiffs ask the Court to declare those provisions to be unconstitutional and enjoin their enforcement against plaintiffs and the primary class.
    ARGUMENT
    This Court has already found all of the challenged provisions to be unconstitutional in Does I. Those provisions are unconstitutional here for the same reasons.
    This Court should extend its Does I rulings to apply class-wide. The parties have
    stipulated that “the claims … of the representative parties are typical of the claims
    … of the classes and subclasses.” Class Cert Order, R.46, Pg.ID#694. And defendants have argued in the numerous actions brought by individual registrants that
    any injunctive relief must come through this class action. See, e.g., Does #1-2 v.
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1129 Page 17 of 41
    4
    Curran, 1:18-cv-11935 (E.D. Mich.), R.76, Pg.ID#883 (arguing that registrants’
    vagueness and strict liability challenges should be decided in the class action).
    The relevant facts are set out in plaintiffs’ Verified Second Amended Complaint and accompanying exhibits, R.34 to 34-9; the exhibits to plaintiffs’ prior
    motion on the ex post facto issues, R.62-1 to 62-8, 65, and the stipulated Joint
    Statement of Facts (JSOF) in Does I. (Exhibit A.1
    ) As this Court is fully familiar
    with the legal issues from Does I, plaintiffs will not reiterate all of those arguments, but instead point the Court to its own analysis in its two prior opinions. That
    analysis applies with equal force to the plaintiffs in this case.
    I. SORA Violates Plaintiffs’ Due Process and First Amendment Rights.
    A. SORA Is Unconstitutionally Vague.
    In Does I, this Court began by setting out the primary goals of the vagueness
    doctrine: “‘to ensure fair notice to the citizenry’ and … ‘to provide standards for
    enforcement by the police, judges, and juries.’ Columbia Natural Res., Inc. v.
    Tatum, 58 F.3d 1101, 1104 (6th Cir. 1995).” Does I, 101 F. Supp. 3d at 681. The
    Court explained that there is a two-part test to determine vagueness:

    1
    The JSOF summarizes a voluminous record. Because those facts were stipulated
    to by defendants—who, as here, were the governor and state police director—
    plaintiffs are not resubmitting the entire underlying record, but rather incorporate it
    by reference. Plaintiffs do resubmit the expert reports and declarations regarding
    the results of surveys of law enforcement agencies and prosecutors’ offices, so that
    they are easily available to the Court in their entirety. See Exh. B-J. Plaintiffs are
    prepared to refile the entire Does I record should the Court find it necessary.
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1130 Page 18 of 41
    5
    First, the court must determine whether the law gives a person “of
    ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” . . . Second, the court must
    evaluate whether the statute provides sufficiently “explicit standards
    for those who apply them” or whether, due to a statute’s vagueness, it
    impermissibly delegates basic policy matters to policemen, judges,
    and juries for resolution on an ad hoc and subjective basis.
    Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)).
    The Court next discussed three factors that affect the degree of vagueness
    that the Constitution tolerates.2
    First, “‘[t]he [Supreme] Court has expressed greater
    tolerance of enactments with civil rather than criminal penalties.’” Id. (quoting
    Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498
    (1982)). See id. (“consequences of imprecision” more severe for criminal laws);
    Springfield Armory, Inc. v. City of Columbus, 29 F.3d 250, 252 (6th Cir. 1994)
    (“When criminal penalties are at stake…a relatively strict test is warranted.”).
    Second, laws based on strict liability must meet a higher threshold for clarity. Does
    I, 101 F. Supp. 3d at 681. See also Peoples Rights Org. v. City of Columbus, 152
    F.3d 522, 534 (6th Cir. 1998) (“in the absence of a scienter requirement…a statute
    is little more than a trap for those who act in good faith”). Finally, “‘perhaps the
    most important factor affecting the clarity that the Constitution demands of a law is

    2
    Plaintiffs note that an additional factor pointing towards exacting review of their
    claim is that a statute which is unclear in multiple respects must be reviewed more
    stringently than one with a single defect: “Each of the uncertainties in the [statute]
    may be tolerable in isolation, but their sum makes a task for us which at best could
    be only guesswork.” Johnson v. United States, 135 S.Ct. 2551, 2560 (2015).
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1131 Page 19 of 41
    6
    whether it threatens to inhibit the exercise of constitutionally protected rights.’”
    Does I, 101 F. Supp. 3d at 681 (quoting Hoffman Estates, 455 U.S. at 498-99).
    This Court found all three factors present under SORA. The challenged
    provisions impose criminal sanctions for non-compliance, M.C.L. §§ 28.729,
    734(2), 735(2); make plaintiffs strictly liable for failure to comply with certain
    requirements and prohibitions, M.C.L. §§ 28.725a, 729(2), 734–.735; and implicate plaintiffs’ fundamental rights. Does I, 101 F. Supp. 3d at 681. The Court
    concluded that it would therefore use an “exacting” standard for vagueness, but
    tempered by the rule of lenity, which requires “strict construction” of criminal laws
    so that if there is any “ambiguity,” courts will interpret the law to apply “only to
    conduct clearly covered.” Does I, 101 F. Supp. 3d at 681-82 (citing United States
    v. Lanier, 520 U.S. 259, 266 (1997)). The Court then concluded that SORA’s
    exclusion zones, loitering provisions, and certain reporting requirements were
    unconstitutionally vague. Id. at 682-90. Plaintiffs here challenge the exact same
    provisions that this Court found to be unconstitutionally vague in Does I.
    1. SORA Does Not Provide Clear Notice to Registrants or Adequate
    Guidance to Law Enforcement About How to Determine the Location
    of Exclusion Zones.
    SORA criminalizes a wide range of otherwise innocent conduct (e.g., working, living, watching one’s children) if registrants engage in that activity within the
    exclusion zones. M.C.L. §§ 28.734-28.735. Because such conduct is entirely legal
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1132 Page 20 of 41
    7
    outside the zones, both registrants and law enforcement must know where the
    zones are to know if the conduct is a crime.
    In Does I, this Court held that SORA’s exclusion zones are unconstitutionally vague in multiple ways: (1) “SORA does not provide sufficiently definite
    guidelines for registrants and law enforcement to determine from where to measure
    the 1,000 feet distance used to determine the exclusion zones”; (2) “neither the registrants nor law enforcement have the necessary data to determine the zones even if
    there were a consensus about how they should be measured”; and (3) “[i]t is unclear whether SORA’s exclusion zone should be measured only from the real property on which educational instruction, sports or other recreational activities take
    place” or whether the zones include school properties “not used for one of the
    stated purposes.” Does I, 101 F. Supp. 3d at 683-84. In other words, registrants do
    not know what school properties trigger exclusion zones, do not know from which
    boundaries the 1,000-foot distance is measured, and cannot discern those boundaries in real space. This Court concluded that “due to SORA’s vagueness, registrants are forced to choose between limiting where they reside, work, and loiter to
    a greater extent than is required by law or risk violating SORA.” Id. at 684-85.
    In the instant case, the named plaintiffs and primary class they represent,
    must comply with the same unconstitutionally vague SORA provisions as the Does
    I plaintiffs. As in Does I, plaintiffs here have found it impossible to determine
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1133 Page 21 of 41
    8
    where they may legally live, work, and spend time. In order to comply with SORA,
    they must continuously know where the zones are as they move about their daily
    lives: every time they apply for a job, get sent to a new job site, search for an apartment, or take their children to a playground, they must first determine if their activities will potentially take place in an exclusion zone. For example, when Doe #3’s
    employer assigns him to different job locations, he does not know whether those
    locations are in exclusion zones. 2d Am. Verified Compl., R.34, ¶118. Similarly,
    Doe #4, who works construction, will often travel several hours to a job site, only
    to find that the job is close to a school; he cannot learn in advance whether these
    sites are within exclusion zones. Id., ¶121. Moreover, when he was looking for a
    home, he was unable to determine, despite internet research, whether he would be
    committing a crime if he moved into a home that was within 1,000 feet of a school
    bus yard. Id., ¶122. See also id. ¶¶105-126; JSOF ¶¶372-478, 497-507; Exhs. E, F,
    H, I, J, 1st and 2d Wagner Rep., Stapleton Rep; Poxson Decl.; Granzotto Decl.
    In accord with Does I, this Court should declare that the exclusion zone
    restrictions, which prohibit residing, working, or loitering within a zone, M.C.L. §§
    28.733-28.735, are unconstitutionally vague, and should permanently enjoin their
    enforcement against plaintiffs and the primary class.
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1134 Page 22 of 41
    9
    2. SORA Does Not Provide Clear Notice to Registrants or Adequate
    Guidance to Law Enforcement About What Constitutes “Loitering.”
    SORA defines “loiter” as “to remain for a period of time and under circumstances that a reasonable person would determine is for the primary purpose of
    observing or contacting minors.” M.C.L. §28.733(b). In Does I, this Court found
    that the first phrase (“remain for a period of time”) was sufficiently clear, but that
    the second phrase (“under circumstances that a reasonable person would determine
    is for the primary purpose of observing or contacting minors”) is not.3 Does I, 101
    F. Supp. 3d at 685-86 (citing City of Chicago v. Morales, 527 U.S. 41, 56-67
    (1999) (holding that an anti-gang ordinance prohibiting “loitering” was unconstitutionally vague, where that term was defined as remaining in a place “with no
    apparent purpose”)). One cannot know, this Court said, “whether a registrant may
    attend a school movie night where he intends only to watch the screen, or a parentteacher conference where students may be present.” Id. at 686. The law’s ambiguity had led the Does I plaintiffs to extensively curtail their conduct, even avoiding
    activities like waiting for their children, or talking to a niece or nephew, at school.
    Id. at 685. Indeed, because it is so unclear what the “loitering” ban prohibits, this

    3
    This Court’s decision is supported by the Supreme Court’s subsequent decision
    in Elonis v. United States, 135 S.Ct. 2001, 2011 (2015), which emphasized that
    criminal liability cannot be defined under a “reasonable person” standard: “Such a
    ‘reasonable person’ standard is a familiar feature of civil liability in tort law, but is
    inconsistent with the conventional requirement for criminal conduct – awareness
    of some wrongdoing.” Id. (original emphasis).
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1135 Page 23 of 41
    10
    Court found that it was “unable to determine to what extent SORA infringes on
    Plaintiffs’ right to participate in the upbringing and education of their children.” Id.
    at 698. This Court concluded that the definition of “loiter” “is sufficiently vague as
    to prevent ordinary people using common sense from being able to determine
    whether Plaintiffs are, in fact, prohibited from engaging in the conduct from which
    Plaintiffs have refrained.” Id. at 686.
    Plaintiffs and primary class members here are in the exact same position as
    the Does I plaintiffs. For example, Doe #1 does not attend his son’s sporting events
    because he does not know if that is a crime; he contacted both his local prosecutor
    and the Michigan State Police for clarification, and both refused to provide an
    answer about whether such conduct is illegal. 2d Am. Verified Compl. ¶132. Doe
    #4 would like to attend church, but does not for fear that, because the church has a
    Sunday school, attendance might constitute loitering. Id. at ¶135. Doe #5 refrains
    from walking in unfamiliar neighborhoods because he fears that he might inadvertently enter an exclusion zone. Id. at ¶139. Doe #6 cannot stay with his wife and
    children, as they live in an apartment above the family restaurant, which may be in
    an exclusion zone. Id. at ¶124-26. He is uncertain how much time he can spend
    with his family in their home without violating SORA. Id. He also does not attend
    his children’s parent-teacher conferences or band concerts for fear that this would
    be considered “loitering.” Id. at ¶140. See also JSOF ¶¶509-600.
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1136 Page 24 of 41
    11
    3. SORA Does Not Provide Clear Notice to Registrants or Adequate
    Guidance to Law Enforcement About Reporting Requirements.
    In Does I, this Court enjoined reporting and “immediate” reporting requirements triggered by:
    • “regularly” operating a vehicle, M.C.L. §§28.725(1)(g), 28.727(1)(j);
    • “routinely” using a telephone, M.C.L. §28.727(1)(h); and
    • “routinely” using or establishing electronic accounts or designations,
    M.C.L. §§28.727(1)(f), (i).
    Does I, 101 F. Supp. 3d at 686-90; 704. This Court found that neither the MSP nor
    local police know what “regularly” and “routinely” mean, and these provisions are
    “not sufficiently concrete (1) ‘to ensure fair notice to the citizenry’ or (2) ‘to provide standards for enforcement by the police, judges, and juries.’” Id. at 688 (quoting Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1104 (6th Cir. 1995)).
    Here too, plaintiffs and class members face the same problems as the Does I
    plaintiffs. For example, Doe #4 drives many company vehicles and construction
    equipment, and does not know whether he must report them. 2d Am. Verified
    Compl. ¶¶151-52. He also does not serve as a designated driver or drive friends in
    bad weather, fearing that driving others’ cars could be a crime. Id. ¶153. Doe #6
    limits his use of the internet because he does not know what he must report. Id.
    ¶165. See also id. ¶¶141-65; JSOF, ¶¶851-83. Thus, just as in Does I:
    Here, SORA subjects registrants to criminal sanctions if they do not comply with
    the registration requirements, but SORA’s vagueness 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.
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1137 Page 25 of 41
    12
    Does I, 101 F.Supp.3d at 689-90.
    B. SORA’s Strict Liability Provisions Violate Due Process Because
    They Impose Harsh Penalties for Innocent Conduct.
    “While strict-liability offenses are not unknown to the criminal law and do
    not invariably offend constitutional requirements…, [t]he existence of a mens rea
    is the rule [], rather than the exception.” United States v. U.S. Gypsum Co., 438
    U.S. 422, 435, 437 (1978) (citations omitted). Without a scienter requirement, laws
    —particularly vague laws—may be “little more than a trap for those who act in
    good faith.” Colautti v. Franklin, 439 U.S. 379, 395 (1979). Strict liability is least
    permissible where it affects constitutionally-protected rights. See United States v.
    X-Citement Video, Inc., 513 U.S. 64, 71 (1994) (scienter required because of law’s
    impact on constitutionally protected rights); Smith v. California, 361 U.S. 147
    (1959) (strict liability unconstitutional where “timidity in the face of [] absolute
    criminal liability” keeps people from exercising constitutionally protected rights).
    To determine whether strict liability violates due process, courts should first
    consider whether “the offense involves conduct for which one would not ordinarily
    be blamed.” Stanley v. Turner, 6 F.3d 399, 404 (6th Cir. 1993). While “strict liability” is sometimes permissible when regulating conduct that inherently presents a
    serious risk to public safety, the state cannot dispense with mens rea when criminalizing otherwise innocent behavior. Compare, e.g., United States v. Freed, 401
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1138 Page 26 of 41
    13
    U.S. 601, 609 (1971), with Liparota v. United States, 471 U.S. 419, 426, 431
    (1985).4
    Thus in Lambert v. California, 355 U.S. 225 (1957), the Court held that a
    law requiring felons to register violated due process. Strict liability was unconstitutional because the law “punished conduct which would not be blameworthy in the
    average member of the community.” Id. at 229. Because the defendant received no
    notice, she could not and did not know that the otherwise innocent act of being in
    Los Angeles was a crime, and she was given no opportunity to comply upon
    learning of the registration requirement. Id. at 227-29.
    Second, courts ask whether the penalty is “relatively small.” United States v.
    Wulff, 758 F.2d 1121, 1124 (6th Cir. 1985).5
    “‘Crimes punishable with prison
    sentences…ordinarily require proof of guilty intent.’” Staples, 511 U.S. at 616-17
    (quoting Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55, 70 (1933)).
    In Does I, this Court accordingly found strict liability impermissible and

    4 See Stanley, 6 F.3d at 404 (“[W]here a criminal statute prohibits and punishes
    seemingly innocent and innocuous conduct that does not in itself furnish grounds
    to allow the presumption that the defendant knew his actions must be wrongful,
    conviction without some other, extraneous proof of blameworthiness or culpable
    mental state is forbidden by the Due Process Clause”); United States v. Apollo
    Energies, Inc., 611 F.3d 679, 687 (10th Cir. 2010) (strict liability “constitutionally
    suspect” when applied to conduct that is “commonly and ordinarily not criminal”).
    5
    In Wulff, the Sixth Circuit held that the defendant could not be strictly liable for
    selling bird parts because the penalty—two years’ imprisonment or $2,000—“is
    not, in this Court’s mind, a relatively small penalty.” 758 F.2d at 1125. SORA
    imposes the very same penalty. See M.C.L. § 28.729(2) (two years or $2,000); §§
    28.734(2), 735(2) (second offense is felony, two years or $2,000).
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1139 Page 27 of 41
    14
    read a “knowledge requirement” into SORA: activities like “taking one’s children
    to a park … or failing to report a new e-mail account, are … not inherently blameworthy,” nor are they “‘so obviously against the public interest that a reasonable
    person should be expected to know’” they are regulated. 101 F. Supp. 3d at 693
    (quoting Liparota, 471 U.S. at 433). This Court explained:
    SORA imposes myriad restrictions and reporting requirements that
    affect many aspects of registrants’ lives. Ambiguity in the Act,
    combined with the numerosity and length of the Act’s provisions,
    make it difficult for a well-intentioned registrant to understand all of
    his or her obligations… The frequency with which SORA is amended,
    as well as today’s highly mobile population, make a knowledge
    requirement even more important to ensure due process of law.
    Does I, 101 F. Supp. 3d at 693.
    Here, just as in Does I, plaintiffs “fear that despite their best efforts to understand and comply with the law, they will be held liable for unintentional violations
    of SORA.” 2d Am. Verified Compl., R.34, ¶168. See id. ¶¶166-174; Exh. A, JSOF,
    ¶¶884-909. Their fear is well-justified because SORA imposes lengthy prison
    sentences for even inadvertent violations. M.C.L. §§ 28.729(1); 28.734(2);
    28.735(2). SORA continues to criminalizes entirely innocent activities through
    provisions that are extraordinarily vague.6
    And that is just as unconstitutional today

    6
    For example, registrants are strictly liable for being employed, living with their
    families, or attending a child’s graduation in an exclusion zone. M.C.L. §§ 28.734,
    28.735. Registrants are also strictly liable if they fail to report (often immediately
    and in person) an enormous range of ordinary activities—borrowing a phone,
    joining a fantasy football league, establishing an on-line account for a child’s
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1140 Page 28 of 41
    15
    as it was four years ago.
    C. SORA’s Provisions on Internet Reporting Violate the First
    Amendment, Both Directly and by Incorporating Lifetime Reporting.
    In Does I, this Court held that SORA’s 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,” M.C.L. § 28.725(1)(f), facially violates the
    First Amendment. The Court said the “in person” reporting requirement was “not
    narrowly tailored, and, therefore, unconstitutional,” and the Court issued a blanket
    injunction against its enforcement. Does I, 101 F. Supp. 3d 672, 701-02, 704, 713.
    This Court also held that “[a]mbiguity as to the meaning of ‘routinely used’
    would likely result in both overreporting and under use of permissible speech
    activities.” Does I, 101 F. Supp. 3d 672, 704. On both First Amendment and
    vagueness grounds, the Court facially enjoined SORA’s requirements to report
    “[a]ll electronic mail addresses and instant message addresses … routinely used by
    the individual,” and “[a]ll telephone numbers … routinely used by the individual.”
    M.C.L. § 28.725(1)(h)-(i). See Does I, 101 F. Supp. 3d 672, 686-90, 704, 713.
    Finally, to the extent that reporting requirements incorporate SORA’s

    homework, or traveling for more than seven days. M.C.L. §§ 28.724a, 28.725,
    28.725a, 28.727, 28.729(2); see Obligations, Disabilities, and Restraints Imposed
    by SORA, Exh. K.
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1141 Page 29 of 41
    16
    retroactive lifelong registration, this Court found that lifetime reporting of internet
    identifiers “was not narrowly tailored” because “sex offenders who have not reoffended in twenty-five years” do not “pose an enhanced risk of committing sex
    offenses.” Does I, 101 F. Supp. 3d 722, 730. The Court issued a similar blanket
    injunction against retroactive lifetime enforcement of M.C.L. § 28.727(1)(i). Id.
    When this Court granted relief on the First Amendment claims in Does I, it
    found the above provisions facially invalid, and its injunctions were not limited to
    the Does I plaintiffs. Id. at 713. For the past four years, defendants have ignored
    those existing injunctions. This Court should make clear that the Does I injunctions
    prohibit enforcement of these provisions and enter identical injunctions in Does II.
    II. A Permanent Injunction Is Warranted.
    A. The Court Should Grant a Permanent Injunction Barring Enforcement of the SORA Provisions that Violate Due Process and the First
    Amendment.
    Plaintiffs seek a permanent injunction barring enforcement of the vague
    provisions, strict liability enforcement, and enforcement of the challenged internet
    reporting requirements. “A party is entitled to a permanent injunction if it can
    establish that it suffered a constitutional violation and will suffer continuing
    irreparable injury for which there is no adequate remedy at law.” Lee v. City of
    Columbus, 636 F.3d 245, 249 (6th Cir. 2011). That standard is easily met here.
    First, as set out above, plaintiffs and primary class members have suffered a
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1142 Page 30 of 41
    17
    violation of their constitutional rights under the Due Process Clause and First
    Amendment. And that violation is ongoing. Despite this Court’s holding that the
    zones are unconstitutionally vague, defendants continue to inform all registrants
    that they cannot live, work, or loiter in the undefined zones. 2d Am. Verified
    Compl., ¶107; Explanation of Duties, R. 62-4, ¶¶12-13. And registrants who
    cannot determine where the zones are continue to face criminal prosecution and
    incarceration. See e.g. Roe v. Snyder, 240 F. Supp. 3d 697, 711-12 (E.D. Mich.
    2017) (enjoining prosecution of registrant after police informed her she would face
    criminal charges if she did not quit the job she had held for eight years); Curran,
    3:18-cv-11935, R.27 (granting injunction against prosecution of plaintiff who
    relied on advice of local police before purchasing home, but was then threatened
    with prosecution); Farkas Decl., R.62-6 (describing strict liability prosecutions of
    registrants under vague SORA reporting provisions); Van Gelderen Decl., R.62-7
    (describing prosecution and conviction for “loitering” of grandfather who attended
    child’s soccer game, despite counsel’s reliance on Does I’s vagueness ruling).
    Moreover, defendants’ “Explanation of Duties” form continues to tell registrants that they must comply with the reporting requirements that were enjoined by
    this Court in Does I. Explanation of Duties, R.62-4, ¶¶4(h)-(i), 6(f), 12. In short,
    defendants continue to require all registrants—under threat of felony prosecution—
    to comply with the very provisions of SORA that this Court has already found to
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1143 Page 31 of 41
    18
    be unconstitutional, and defendants continue to operate the registry as if Does I had
    never been decided.
    Second, plaintiffs and primary class members will continue to suffer irreparable harm unless injunctive relief is granted. Indeed, “if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated.” ACLU of Kentucky v. McCreary County, 354 F.3d 438, 445 (6th Cir. 2003).
    Since this Court has already held that the challenged provisions are unconstitutional, this Court must find that such enforcement constitutes irreparable harm. See
    Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir.
    2002) (explaining that “a denial of an injunction will cause irreparable harm if the
    claim is based upon a violation of the plaintiff’s constitutional rights”); Preston v.
    Thompson, 589 F.2d 300, 303 n.3 (7th Cir. 1978) (“the existence of a continuing
    constitutional violation constitutes proof of an irreparable harm”).
    Nor are there adequate remedies at law. In order for a legal remedy to suffice, it “must not only be plain, speedy and adequate, but as adequate to meet the
    ends of justice as that which the restraining power of equity is competent to grant.”
    Harris Stanley Coal & Land Co. v. Chesapeake and O. Ry. Co., 154 F.2d 450, 453
    (6th Cir. 1946). There are simply no such adequate legal remedies where plaintiffs
    continue to face prosecution and incarceration based on SORA’s unconstitutional
    provisions. A permanent injunction is warranted.
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1144 Page 32 of 41
    19
    B. In the Alternative, the Court Should Grant a Preliminary Injunction.
    Partial summary judgment is proper because no facts are in dispute and this
    Court need only apply its prior decisions in Does I. If, however, the Court were to
    identify issues that make summary judgment premature at this time, then plaintiffs
    ask the Court to issue a preliminary injunction instead.
    In ruling on a motion for a preliminary injunction, courts must consider
    whether: (1) the movant is likely to prevail on the merits; (2) the movant would
    suffer an irreparable injury absent the injunction; (3) an injunction would cause
    substantial harm to others; and (4) an injunction would be in the public interest.
    G & V Lounge, Inc. v. Mich. Liquor Control, Comm’n, 23 F.3d 1071, 1076 (6th
    Cir. 1994). A preliminary injunction is warranted for the same reasons as a
    permanent one.
    With respect to the likelihood of success—which is the most important
    factor, see McCreary County, 354 F.3d at 445—plaintiffs have already prevailed
    on exactly the same questions in Does I.
    On the second factor, plaintiffs will continue to suffer irreparable injury, as
    set out above.
    Third, the balance of hardship tips strongly in plaintiffs’ favor. Approximately 44,000 people are suffering grave harm under SORA provisions this Court
    held to be unconstitutional more than four years ago. In contrast, defendants have
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1145 Page 33 of 41
    20
    no legitimate interest in enforcing unconstitutional laws. As a matter of law, a
    party cannot claim that it will be harmed by an injunction if the conduct to be
    enjoined violates the Constitution. See Tyson Foods v. McReynolds, 865 F.2d 99,
    103 (6th Cir. 1989) (holding defendant “has suffered no injury … [from injunction
    because it] has no right to the unconstitutional application of state laws”); Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (same).
    Fourth, it is well established that the vindication of constitutional rights
    serves the public interest. See, e.g., G & V Lounge, 23 F.3d at 1079 (“it is always
    in the public interest to prevent violation of a party’s constitutional rights”);
    Preston, 589 F.2d at 303 n.3 (remedying a constitutional violation “certainly
    would serve the public interest”); Caspar v. Snyder, 77 F. Supp. 3d 616, 644 (E.D.
    Mich. 2015) (“the public interest is always served by robust protection of constitutional guarantees”). The fourth factor, too, therefore weighs in favor of granting
    injunctive relief.
    C. Questions Involving Relief for the Ex Post Facto Subclasses
    Should Not Stall Relief for the Primary Class.
    This Court plans to hear the instant motion concurrently with plaintiffs’
    pending motion on behalf of the ex post facto subclasses. Order, R.74. This Court
    has already decided liability on the ex post facto claims, see Decl. Judgment and
    Order for 90-Day Deferral, R.55, leaving only the question of what injunctive
    relief is proper if the 2011 amendments cannot be severed because they are so
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1146 Page 34 of 41
    21
    deeply embedded in the statute. Defendants have asked this Court to certify the
    severability issue to the Michigan Supreme Court. See Response, R.66. But the
    Court can only do so if certification “will not cause undue delay or prejudice.” L.R.
    83.40 (a)(3). Certification absent interim ex post facto relief would be impermissible because it would severely prejudice the ex post facto subclasses. See Plaintiffs’ Reply Brf., R.69, Pg.ID#1069-72.
    In the instant motion plaintiffs seek relief for the primary class on the
    vagueness, strict liability, and First Amendment claims—claims that are entirely
    separate from the ex post facto claim of the ex post facto subclasses. But the interplay of the Court’s decisions on the two motions is important. Certification of the
    severability question prior to a decision on the instant motion would be highly
    prejudicial to the primary class if this Court were to interpret L.R. 83.40(b) as
    requiring a complete stay of federal proceedings. (As explained in plaintiffs’
    Reply, R.69, Pg.ID#1071, the best reading of L.R. 83.40(a)(2) is that it requires a
    stay only as to the claim on which an issue is certified.) Absent a class-wide
    injunction, primary class members face prosecution under provisions of SORA that
    this Court has already found unconstitutional. See Roe, 240 F. Supp. 3d at 711-12;
    Curran, 3:18-cv-11935; Farkas Decl., R.62-6; Van Gelderen Decl., R.62-7. Yet
    class members are severely constrained in protecting their rights individually, because defendants have insisted that relief must come in the class action. Staying the
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1147 Page 35 of 41
    22
    entire case would thus severely prejudice primary class members, and therefore
    make certification of the severability question impermissible under L.R. 83.40.
    As set out in plaintiffs’ Joint Status Conference Request, R.73, if this Court
    broadly enjoins the application of SORA for pre-2011 registrants because the 2011
    amendments are not severable, that could at long last lead to legislative reform
    because it will effectively force the parties back to the bargaining table. It has
    become clear that the legislature will not act to remedy the aspects of SORA that
    the Sixth Circuit and this Court have held unconstitutional absent an express
    judicial requirement to do so. Indeed, Lt. Christopher Hawkins, the Commander
    for the MSP Legislative and Legal Resources Section, has testified as much.7
    This
    Court cannot rewrite the statute—that is a legislative task—but it can and should
    make clear through its injunctions what the scope of that legislative task is. And
    that task includes not just addressing the unconstitutionality of retroactive application of the 2006 and 2011 amendments, but also SORA’s infirmities with respect

    7
    Lt. Hawkins testified at a deposition in Compaan v. Snyder, 15-cv-01140
    (W.D. Mich.) at 42 (Exh. L) as follows:
    Q. Did anyone in the meeting suggest it might be more politically expedient to
    wait until the court essentially required changes to SORA before
    attempting to make those changes in the legislature?
    A. I suppose that was part of my argument as to why to wait, yeah.
    Q. It might be more palatable to an individual member of the Senate or
    House’s constituents to make changes to the Sex Offender Registry
    because the court is requiring the state to do so?
    A. Yes.
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1148 Page 36 of 41
    23
    to vagueness, strict liability, and the First Amendment.
    Accordingly, the Court should set forth that legislative task by enjoining
    both the enforcement of SORA entirely for pre-2011 registrants (for the reasons set
    out in plaintiffs’ prior motion, R.62) and the enforcement of the provisions challenged here for all registrants. Deciding both issues simultaneously will also allow
    the legislature to remedy the constitutional defects in a single, unified statute.
    As the Supreme Court has said, courts should be “wary of legislatures who
    would rely on our intervention.” Ayotte v. Planned Parenthood of Northern New
    England, 546 U.S. 320, 330 (2006). Courts’ “mandate and institutional competence
    are limited,” and they cannot “rewrit[e] state law to conform it to constitutional
    requirements.” Id. at 329. Moreover, “where line-drawing is inherently complex,”
    efforts to craft a judicial remedy for an unconstitutional statute “may call for a far
    more serious invasion of the legislative domain than [courts] ought to undertake.”
    Id. at 330 (citation omitted). Here there is simply no way for this Court to divine
    exactly what the legislature wants. And even if this Court could, there is no way to
    judicially rewrite the statute to achieve that goal.
    8

    8 For example, legislative negotiations to date have made clear that all stakeholders prefer a single statute for all registrants, rather than a regime that is even
    more confusing than the current law because different offense dates would trigger
    different SORA requirements. Adopting a single registration regime effectively
    means that certain requirements that are unconstitutional for pe-2006 and pre-2011
    registrants would also not be imposed on post-2011 registrants.
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1149 Page 37 of 41
    24
    There is little doubt that the legislature will want some form of registration
    statute. But the requested injunctions do not prevent that. If this Court grants the
    relief requested but makes the injunctions effective 60 days out, that will put the
    task of rewriting the statute to make it constitutional back where it belongs—with
    the legislature. The requested injunctions are not designed to nullify the work of
    the legislature. They are designed to make the legislature get to work.
    III. The Court Should Order Notice.
    The Court should order notice of any relief granted here to all registrants,
    and to all prosecutors and law enforcement personnel who have responsibility for
    enforcing SORA, with the Michigan State Police to provide the notice. Rules
    23(c)(2)(A) and 23(d)(1)(B) give the Court broad discretion to ensure that class
    members get appropriate notice. Moreover, the state has a statutory responsibility
    to inform registrants of their SORA obligations. M.C.L. § 28.725a. And, as this
    Court has held, notice is essential so that registrants can understand and comply
    with the law—a problem made all the more acute by the byzantine nature of the
    statute. Does I, 834 F.3d at 698. The Court should also order defendants to provide
    notice to prosecutors and law enforcement who are responsible for SORA enforcement, to ensure that they are fully aware of any relief that this Court orders.
    The Michigan State Police SOR Unit is best placed to handle notice, as it
    maintains the records for all registrants and has prior experience with notice to
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1150 Page 38 of 41
    25
    both registrants and law enforcement. For example, after implementation of the
    2011 amendments, the MSP mailed notice regarding the statutory changes to all
    registrants. See Exh. A, JSOF, ¶¶ 783-86. Similarly, after the Sixth Circuit’s decision in Does I in 2016, the MSP sent out a notice to law enforcement about the
    decision. See Exh. M, MSP Bulletin Re Does I. Finally, the Court should order the
    parties jointly to develop a notice or notices, with any disputes to be resolved by
    the Court. The Court should also set a deadline for the parties to present for the
    Court’s approval a proposed plan and schedule for distribution of the notices.
    Defendants should, in addition, be required to update the Explanation of
    Duties form to accurately reflect the law. The form is provided to registrants each
    time they report, and summarizes registrants’ obligations under SORA. Despite the
    Sixth Circuit’s and this Court’s rulings in Does I, the MSP has continued to inform
    registrants that they must comply with SORA as written. See Form, ECF 62-4, 62-
    5. Given that registrants face prison time if they misunderstand their SORA obligations, they should be given accurate information about what their obligations are.
    Note, however, that updating the Explanation of Duties is not a substitute for class
    notice because it is only provided when registrants report. Thus, registrants who
    only report annually might not get notice for another year. M.C.L. § 28.725a(3)(a).
    CONCLUSION
    For the reasons set out above, the Court should grant the relief requested.
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1151 Page 39 of 41
    26
    Respectfully submitted,
    s/ Alyson L. Oliver (P55020)
    Oliver Law Group P.C.
    363 W. Big Beaver Rd., Suite 200
    Troy, MI 48226
    (248) 327-6556
    notifications@oliverlg.com
    s/ Paul D. Reingold (P27594)
    Michigan Clinical Law Program
    363 Legal Research Building
    801 Monroe Street
    Ann Arbor, MI 48109
    (734) 763-4319
    pdr@umich.edu
    Dated: December 23, 2019
    s/ Miriam J. Aukerman (P63165)
    American Civ

  28. Brandon

    UNITED STATES DISTRICT COURT
    EASTERN DISTRICT OF MICHIGAN
    SOUTHERN DIVISION
    __________________________________________________________________
    JOHN DOES #1-6, on behalf of themselves and all others similarly situated,
    File No. 2:16-cv-13137
    Plaintiffs,
    v. Hon. Robert H. Cleland
    GRETCHEN WHITMER, Governor of the Mag. J. David R. Grand
    State of Michigan, and COL. JOSEPH
    GASPAR, Director of the Michigan State
    Police, in their official capacities,
    Defendants.
    __________________________________________________________________
    Statement on Concurrence
    Pursuant to Local Rule 7.1, on December 12, 2019, plaintiffs informed defendants
    of this motion, which was thereafter also discussed at the status conference held on
    December 17, 2019. On December 22, 2019, plaintiffs formally sought concurrence
    from defendants in the relief sought. No response was received by the time this
    motion was filed.
    —————————————————————————————————-
    PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
    ON BEHALF OF THE PRIMARY CLASS
    1. Plaintiffs’ Second Amended Verified Class Action Complaint, R.34, sets out
    four claims: I. Vagueness (Due Process Clause); II. Strict Liability (Due Process
    Clause); III. First Amendment; and IV. Ex Post Facto Clause. Each of these claims
    seeks class-wide relief on an issue where either this Court or the Sixth Circuit Court
    of Appeals found Michigan’s Sex Offenders Registration Act (SORA), M.C.L. §
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1113 Page 1 of 41
    2
    28.721, et seq., to be unconstitutional. See Does #1-5 v. Snyder (Does I), 101 F.
    Supp. 3d 672 and 101 F. Supp. 3d 722 (2015) and 834 F.3d 696 (6th Cir. 2016).
    2. In September 2018, defendants stipulated to class certification, and this Court
    certified a primary class, defined as all people who are or will be subject to registration under SORA, and two ex post facto subclasses composed of registrants whose
    offenses predate the 2006 and 2011 SORA amendments. See Stipulated Class Certification Order, R.46. Counts I, II, and III are brought by the primary class. Only the
    ex post facto subclasses are bringing Count IV.
    3. In July 2018, the ex post facto subclasses moved for partial summary judgment on their ex post facto claim, seeking declaratory and injunctive relief. Motion,
    R.40. Briefing was initially held in abeyance to allow for legislative action. In May
    2019, defendants stipulated to entry of an order granting declaratory relief as to that
    claim. See Decl. Judgment and Order for 90-Day Deferral, R.55. The parties deferred
    injunctive relief for 90 days, however, to enable the legislature to bring the statute
    into compliance with the constitutional requirements set out in Does I. Id. The legislature failed to do so. In September 2019, more than a year after the ex post facto
    classes first sought relief on the ex post facto claim, they again moved for injunctive
    relief, as well as further declaratory relief. See Motion, R.62. The parties have now
    briefed the issues of severability, certification, and the scope of injunctive relief as
    to the ex post facto claim. See Motion, R.62; Response, R.66, and Reply, R.69.
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1114 Page 2 of 41
    3
    4. To date, no relief has been granted to the primary class on Counts I, II, and
    III. Plaintiffs previously believed, based on stakeholder conversations, that the legislature, when passing a new statute to bring SORA into compliance with the Sixth
    Circuit’s decision in Does I, 834 F.3d 696, would address the constitutional defects
    in the statute identified by this Court in Does I, 101 F. Supp. 3d 672 and 101 F. Supp.
    3d 722, at the same time. In other words, comprehensive legislative reform would
    address not just the claims of the ex post facto subclasses, but also those of the
    primary class.
    5. In light of the fact that defendants have withdrawn from, or at least have
    stalled, what had been productive legislative negotiations, plaintiffs feel they now
    have no choice but to seek partial summary judgment on the claims of the primary
    class. Indeed, state prosecutors continue to bring or threaten prosecutions under
    SORA provisions that this Court held unconstitutional in Does I. See, e.g. Roe v.
    Snyder, 240 F. Supp. 3d 697 (E.D. Mich. 2017); Does v. Curran, et al., File No.
    3:18-cv-11935 (E.D. Mich.); Farkas Decl., R.62-6; Van Gelderen Decl., R.62-7.
    6. With respect to the vagueness claim (Count I), this Court held in Does I that
    SORA’s geographic exclusion zones, SORA’s ban on loitering within exclusion
    zones, and certain SORA reporting requirements, are unconstitutionally vague. Does
    I, 101 F. Supp. 3d at 684-90. With respect to the strict liability claim (Count II), this
    Court held that violations of SORA cannot be enforced as matter of strict liability,
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1115 Page 3 of 41
    4
    but instead the law must be read to punish only knowing or willful violations of
    SORA, to avoid making it unconstitutional under the Due Process Clause. Id. at 693-
    94. Finally, with respect to the First Amendment claim (Count III), this Court held
    that SORA’s immediate, in-person reporting requirements for internet identifiers are
    not narrowly tailored and therefore fail under the First Amendment; that vagueness
    in the term “routinely used” makes the internet and telephone reporting requirements
    overbroad; and that extending SORA’s internet reporting requirements from 25
    years to life violates the First Amendment as applied retroactively because the provision is not narrowly tailored. Does I, 101 F. Supp. 3d 672, 686-90, 704, 713 and 101
    F. Supp. 3d 722, at 728-30.
    7. In Does I, this Court issued declaratory and injunctive relief consistent with
    the rulings described above. See Does I, 101 F. Supp. 3d at 713-714, and 101 F.
    Supp. 3d. at 730.
    8. The legislature has failed to pass a new statute that cures the constitutional
    defects, despite the passage of more than four-and-a-half years since the first of this
    Court’s two decisions was issued, and more than four years since the second opinion
    was issued.
    9. Throughout that time plaintiffs and the primary class have continued to be
    subject to the provisions of SORA that this Court held to be unconstitutional under
    the Due Process Clause and the First Amendment.
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1116 Page 4 of 41
    5
    10. Notice to the primary class members, prosecutors and law enforcement is
    necessary to prevent the ongoing constitutional violations and to correct misinformation provided by defendants to class members about their obligations under SORA.
    WHEREFORE, pursuant to Fed. R. Civ. P. 23, 56, and 65, and 28 U.S.C. §§
    2201 and 2202, plaintiffs John Does #1-6, on behalf of themselves and the primary
    class, now ask this Court to:
    A. Declare, consistent with Does I, 101 F. Supp. 3d 672, that the following
    provisions of SORA are unconstitutionally vague, and permanently enjoin defendants, their officers, agents, servants, employees and attorneys, and all other persons
    who are in active concert or participation with them, from enforcing them against
    plaintiffs and members of the primary class:
    1. the prohibition on working within a student safety zone, M.C.L. §§ 28.733-
    734;
    2. the prohibition on loitering within a student safety zone, M.C.L. §§ 28.733-
    734;

    3. the prohibition on residing within a student safety zone, M.C.L. § 28.733
    and § 28.735;
    4. the requirement to report “[a]ll telephone numbers … routinely used by the
    individual, M.C.L. § 28.727(1)(h);
    5. the requirement to report “[a]ll electronic mail addresses and instant
    message addresses … routinely used by the individual, M.C.L. §
    28.727(1)(l); and
    6. the requirement to report “[t]he license plate number, registration number,
    and description of any motor vehicle, aircraft, or vessel … regularly
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1117 Page 5 of 41
    6
    operated by the individual,” M.C.L. § 28.727(1)(j).
    B. Declare, consistent with Does I, 101 F. Supp. 3d 672, that under the Due
    Process Clause of the U.S. Constitution, SORA must be interpreted as incorporating
    a knowledge requirement, and permanently enjoin defendants their officers, agents,
    servants, employees and attorneys, and all other persons who are in active concert
    or participation with them, from holding plaintiffs or members of the primary class
    strictly liable for SORA violations.
    C. Declare, consistent with Does I, 101 F. Supp. 3d 672, and 101 F. Supp. 3d
    722, that the following provisions of SORA violate the First Amendment of the U.S.
    Constitution, and permanently enjoin defendants, their officers, agents, servants,
    employees and attorneys, and all other persons who are in active concert or participation with them, from enforcing these provisions against plaintiffs and members
    of the primary class:
    1. 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,” M.C.L. § 28.725(1)(f);
    2. the requirement to report “[a]ll telephone numbers … routinely used by the
    individual, M.C.L. § 28.727(1)(h);
    3. the requirement to report “[a]ll electronic mail addresses and instant message
    addresses … routinely used by the individual, M.C.L. § 28.727(1)(l);
    4. 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
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1118 Page 6 of 41
    7
    other identifiers used by the individual when using any electronic mail address
    or instant messaging system,” M.C.L. § 28.727(1)(i).
    D. In the alternative, grant the declaratory relief and the corresponding
    injunctive relief requested in paragraphs A-C above, but delay the effective date of
    the injunctive relief for 60 days, to give the legislature one last chance to pass a new
    SORA;
    E. Pursuant to Fed. R. Civ. Proc. 23(c)(2) and 23(d)(1), order the parties to
    draft a mutually agreeable notice or notices regarding any relief granted here, with
    any disputes about the content to be resolved by the Court;
    F. Order prompt notice of any relief granted here to all plaintiffs and members
    of the primary class, and to all prosecutors and law enforcement personnel in this
    state who have responsibility for enforcing SORA; require the Michigan State Police
    to handle providing notice; and set prompt deadlines for the parties to present for the
    Court’s approval a proposed plan and schedule for distribution of the notice or
    notices to class members, prosecutors, and law enforcement.
    G. Order the Michigan State Police to correct the Explanation of Duties form,
    which is provided to registrants whenever they report, so that it accurately reflects
    registrants’ obligations under SORA.
    H. Grant such further declaratory and injunctive relief as appropriate.
    Case 2:16-cv-13137-RHC-DRG ECF No. 75 filed 12/23/19 PageID.1119 Page 7 of 41
    8
    Respectfully submitted,
    s/ Alyson L. Oliver (P55020)
    Oliver Law Group P.C.
    363 W. Big Beaver Rd., Suite 200
    Troy, MI 48226
    (248) 327-6556
    notifications@oliverlg.com
    s/ Paul D. Reingold (P27594)
    Michigan Clinical Law Program
    363 Legal Research Building
    801 Monroe Street
    Ann Arbor, MI 48109
    (734) 763-4319
    pdr@umich.edu
    Dated: December 23, 2019
    s/ Miriam J. Aukerman (P63165)
    American Civil Liberties Union
    Fund of Michigan
    1514 Wealthy SE
    Grand Rapids, MI 49506
    (616) 301-0930
    maukerman@aclumich.org
    s/ Daniel S. Korobkin (P72842)
    American Civil Liberties Union
    Fund of Michigan
    2966 Woodward Avenue
    Detroit, MI 48201
    (313) 578-6824
    dkorobkin@aclumich.org
    Attorneys for Plaintiffs

    • R33

      Hey @ Brandon what dose this mean if you could please dumb it down for me lol thanks

  29. Dennis

    Not sure if anyone saw the Federal Court’s decision in Ocotober 2019. A Michigan registrant was removed from Michigan’s SORA. He then tried to be removed from Federal SORNA, and he could not. Sounds crazy, but if when you are removed from SORA, you still have to register under Federal SORNA. I’m not even sure who you would register through, if your jurisdiction removes you. This applies to states also that are not SORNA Compliant.

    https://mitchellhamline.edu/sex-offense-litigation-policy/wp-content/uploads/sites/61/2019/10/Opinion-Order-Granting-MtD.pdf

    “Moreover, the Sixth Circuit has already determined that a sex offender’s obligations under SORNA do not depend on whether the sex offender has duties under applicable state sex offender registration laws. See United States v. Paul, 718 F. App’x 360 (6th Cir. Dec. 11, 2017).”.

    Even when people say you must give 21 days for International Meghan Law, how would you know about this if you have not been informed? The only way I knew about the 21 day notice was through this site. Had it not been for this site, I would not have known. No one got a letter from the Federal Government stating these duties, so if you are taken to court, how can you be prosecuted if you didn’t know about this obligation? States are not sending the federal obligation to registrants.

    • JohnDoeUtah

      I argued this point for many years after the passage of SORNA, but there were those in community that have till this day argued that SORNA does not apply to state offenders who do not travel in interstate commerce.

      I believe that you cannot be charged with failure to register as a state offender, for not registering, until you travel in interstate commerce. The law does state that it must be knowingly, so there is a notice requirement.

      I think what they are saying here, is that while he may not be charged with failing to registered because his state has taken him off their registry, and the feds have no registration office, they feds are under no obligation to remove his information from the federal registry.

      This gives me concern because my offenses were military. My state took me off after 10-years, but federal SORNA would likely be Tier II (25-years) although my crime is not specifically listed in the code but is comparable to a federal offense listed on SMART Guidelines. SORNA applies directly to me by virtue of a military offense, but my state has no mechanism for complying with SORNA.

  30. Bobby S.

    @Brandon, Thank you, for posting this, but could you please dumb it down for those of us that don’t understand legalize. I am especially interested in what it means for people that were convicted before a registry even existed, like my self and others who were convicted in the early 1990’s .since we are most definitely pre-2006 and 2011 does this mean we would be removed from the registry all together. Thank you again for posting yesterdays motion.

    • New Person

      @ Bobby S.,

      You asked, “.since we are most definitely pre-2006 and 2011 does this mean we would be removed from the registry all together.”

      The short answer is yes. Here’s the excerpt:
      ======
      In May 2019, the Court entered a stipulated order declaring the 2006 and
      2011 amendments to be unconstitutional as to the ex post facto subclasses. The
      Court deferred rulings on injunctive relief “to avoid interfering with the Michigan
      legislature’s efforts to address the Does I decisions.” Decl. Judgment and Order for
      90-Day Deferral. R.55, Pg.ID#783. But the state again failed to take advantage of
      the opportunity provided by this Court to address SORA’s constitutional problems
      through legislation, and in August 2019 this Court set a new briefing schedule.
      Stipulated Order, R.60, Pg.ID#795. The parties have now briefed the issues that
      relate to the ex post facto subclasses, and the Court has set argument on that
      motion for February 5, 2020.
      ======

      The Courts ruled the 2006 and 2011 amendments were unconstitutional due for the “ex post facto subclass”. But there hasn’t been any legislation passed to fix this and there will be motion about it on Feb. 5, 2020.

      There are three other subclasses (or everyone else on the registry), which Brandon previewed in an earlier post, who are vagueness, strict liability, and First Amendment subclasses. They too will receive relief as what has already been decided in Does I case can be applied to all those on the registry.

      The second case was to legally identified the defendant (the State of Michigan) hasn’t complied to the judgement that has been passed by the courts. Basically, it’s an official complaint of non-compliance of the relief granted by the courts, but no laws have been passed to recognize this. Kinda like writing up a person to the boss and if there’s a lot of write-ups, then the boss needs to intervene.

      I hope that helps. But Brandon already did the leg work and previewed the case very succinctly. So, hopefully, things go well on Feb 5, 2020.

      • Bobby S.@ New Person.

        Thank you for dumbing that down for me. It was much easier to understand the way you put it. @ Brandon thank you again for posting the information and keeping us all updated on what is going on with the case, very much appreciated friend.

      • LH64

        Hi All,
        So, the main thought is that things may look brighter for pre-2006-2011, that is Great! My question is about the ones of us that are 2015-2016. Myself, I really did not understand all what was going on with my case.(Which is my fault.) But I had four charges that was pleaded to one of a CSC III attempted. So, this happened seconds before going before the Judge, I said for sure, attempted will work. Well, after all is said and done it seems attempted is as good as fully agreeing to guilt. Long story short, I have two years probation left, but will be on the Registry for the rest of my life. I am not any sort of risk to the public or anyone. I was 60 and the person was early 30’s. So I am just wondering if anyone knows what may happen in the future. Thanks.

  31. Brandon

    @RR3 & Bobby.S ……….Do you own a microwave?

    • R33

      @brandon lol I read them again after I posted that sorry. Too me it sounds like there will be an injunction before February. If I’m wrong please tell me I would really appreciate it. Thank you Brandon for posting all of this for us.

      • Don’t tread on me

        Potentially an injunction…. As was pointed out, the court has no way of forcing the legislature to do anything. They could potentially keep this tied up in the courts for a very long time. If they do they will risk a huge volume of lawsuits. We are in the best legal position we have ever been in. I hope this will turn out as we all hoped

        • Don’t tread on me

          And the waiting continues. It depends upon what day you ask me about my state of mind. Waiting this out is frustrating and a struggle. I long for my freedom, return of my rights and the ability to be anonymous again. I’m old, retired and very tired. This seems so unfair for 6 deleted photos of “suspected” late teen girls.

  32. David

    Forgive me for correcting you, “Don’t Tread On Me”. It doesn’t “seem” unfair – IT IS UNFAIR!!
    And unjustifiably harsh.
    And UNCONSTITUTIONAL! 😠

  33. R33

    The next brief is I think in a few days so maybe then something at the earliest. Or in February 5th I might be wrong on all that but that’s what I’m understanding

  34. TnT

    The registries protect No One….. The Destroy millions of families lives over very to little facts or evidence in most cases . I hope this judge does whats right

    • Josh

      State’s response is due on the 14th and I’ll be shocked if the February 5th hearing actually occurs on that date if recent history is any indicator. I feel you @Don’t Tread. My moods and thought process are all over the place. Some days are great and some days suck. I often wonder if it even matters anymore? After 26 years the damage is permanently done. The privacy is gone, reputation damaged, and my integrity constantly called into question. What will really change if we “win” and get removed? We’ll still be listed on all those secondary commercial sites, still restricted with interstate travel and triggering other state’s requirements. Not to mention IML. The internet is written in permanent ink. It speaks to what @AJ mentioned in a post earlier today about finding it hard to love this country. I couldn’t agree more with that line of thinking given how us registered “citizens” are mistreated and denied many of our God granted constitutional rights…

      • Dennis

        If you’re not currently registered in any state, IML will not affect you. It’s for convictions against a minor AND currently required to register. I understand your frustration, but I’d rather be removed and worry about commercial sites later, then stay on this thing for life. I’ve been on for 20, in a big city, and reputation not ruined.

        We need to be thankful of the Aclu actually helping. I’d rather focus on the good that could happen rather than giving up hope staying depressed, as that definately will not help. Venting on this site has done nothing. We need to actually fight so that IML, etc would not affect us

        • Josh

          @Dennis——not everyday is a depressed or negative day. I am thankful to a point for the ACLU and their efforts. I will be truly grateful when myself and other Michiganders are either removed or granted tangible relief. My post yesterday was not meant to to foster pessimism but to present the realistic obstacles that will remain IF and WHEN we ever see a injunction/decision in our favor. I believe the ACLU naively wasted the better part of 2 years negotiating in good faith with the state of Michigan. It was stated ad nauseum on this very forum that no legislator was going to commit political suicide by touching this issue. If we knew that, then how did the ACLU not know? It will only be “palpable” to the legislature if forced by a court order..

      • Bobby S. @Josh

        @Josh, so what are you saying do you think 2-5-20, will be cancealed and the case will continue to drag on and on and on, or are you saying that maybe the court will finally do something once the states brief is suppose to be submitted on the 1-13-20. I just want this crap to be over with already, I am suppose to go back in to register in March, so fingers crossed I won’t have to, and I refuse to give then a another $50 on top of it. This has to end now.

        • Dennis

          Josh I agree, a lot of waisted time negotiating. I always said the state was going to “pretend” to be negotiating. Thank goodness that now a match has been placed under their asses.

          As I stated, unless you are on another states registry, or have been blacklisted from a foreign government, IML will not apply. It would not make sense for the state to remove you only for federal to keep you on. Also, the National registry is drawn from the states registry.

          How do I know? A friend of mine was recently removed from Michigan’s registry. A couple days later searching the National registry/NCIC, he can no longer be found. I tried searching myself as well.

        • Josh

          @BobbyS…Everybody seems to think that the judge is going to issue some sort of injunction after the state files it’s response on the 13th. Why would he do that with a hearing scheduled less then 3 weeks later? NOBODY is in a hurry to release us from the registry. My question to you is this….What has happened in the last 3 years that makes you think that there WON’T be a delay or continuance for that hearing on February 5? You also mentioned the $50 fee and how you don’t want to pay it…well I have to verify in March as well. You don’t think that the state doesn’t want to collect the last 1/3 of the registrant money in March. I’ll be more than happy to admit I was wrong if everything does go off in a timely manner but don’t count on it. I’m not….

        • Josh

          @Dennis…thanks for that info on the federal registry. That was always my understanding as well but recently people have been saying there was no way off the federal registry. Nice to hear confirmation on that. How’d your friend get off the state registry if you don’t mind my asking?

  35. TnT

    Agree , the Aclu knew the legislator wasn’t going to budge a inch, so all the time waisted on negotiations while hundreds of thousands of citizens rights are being violated knowing damn well that we already won a ruling in a federal court , where I come from negotiations are always way before a court ruling ? I just hope that one day our rights are restored , the system has destroyed many good peoples lives with these registries knowing the whole time the scientific studies used to support these registries are B.S or allowing the state attorney generals to retroactive punishment to thousands of citizens in many cases years after their offenses ? Crazy that this has gone on for 27 years , Its also crazy to think all the young men is this country who will have to live under this type of life long punishment for in most cases there is nothing more then hear say and B.S evidence to support their life long sentences . I hope this judge will step up, this has gone on way to long .

  36. MI in Chaos

    Our Declaration of Independence and our US Constitution, which was written by our founding fathers, stated that ALL MEN ARE CREATED EQUAL. Our elected officials took an oath of office, stating that they will support and defend the Constitution of the United States. But here in the Great State of Michigan, our constitutional rights continue to be violated on a daily basis. When is enough, ENOUGH!!! If we break a court’s ruling, we are forced directly back into the prison system, but this legislation has been breaking a court order for 4 YEARS NOW!!! Nothing being done. It’s time that all men be treated equal. Give us the same rights that our fellow men, who been charged with other crimes have and aren’t on registries, or convict these legislators who continue to break the law, and fail to uphold their oath of office. The only thing that the legislators here in Michigan Care about right now is A GAS TAX or Gov. Whitmer’s Fix the Damn Road crap… Enough is Enough already

  37. Joel

    Is there any updates on Pacer?

    • Bobby S.

      @joel, I heard from Tim from the ACLU, and he said the State did file their brief that they were required to file, but nothing else was said or done on the 13th as far as I know, he also said that nothing major will probably happen on 2-5-20 either if anything at all, probably going to be months and months, so more blowing smoke up everyone’s butts and more and more kicking the can down the road. I will try and fined that email again, but I think I deleted it. If anyone has different news on what’s going on please let us know, thank you in advance.

  38. TnT

    lol@SS off at this whole process ….So unjust how they can stall and not even care after a Federal Court Judge has already declared this registry to be barbaric and punitive at the highest levels , To continue too apply it to thousands of citizens who have already payed their debt to society is very scary . This state has gotten away with applying these unconstitutional laws to thousands of young men of this state for over 25 years ,in most cases with little to no evidence to support the convictions, & in most cases applying this registry years after a conviction ex post facto punishment is not constitutional. This run around has been going on for years & years now. Now they come up with a scam to lock everyone in this class action B.S law suit to prevent people from escaping their Evil ways. This is so unjust to the state of Michigans residents , to have to provide for their families its hard enough out here , & everyone knows being on this registry is disabilitating 100% , everyone knows it , I think lawyers should be filing 45,000 more Michigan disability law suits for everyone who they have kept from being ably to work ,live , exist as a equal among the rest, after a sentence has been served, everyone knows that anyone on these registries are held down and disabled ! Its so crazy to think how this state has gotten away with this for 25 plus years , retroactively applying this to thousands of people in this state , I was forced on this registry retroactively by a renegade politician and his amendment. NOT A JUDGE OR JURY. Honestly I do not think there will ever be relief in this state , I’ve been hearing same B.S for 25 years now. Sad But True !

  39. Bobby S.

    Hi,

    I finally heard back from Tim P. from the ACLU about the brief and what is going on, and what might or might not happen on 2-5-20. and it sounds by what he said, it’s going to keep dragging on and on for a few more months. Anyway this what he emailed me. I would love to get people’s response on what he said.

    The Brief is not available yet and will be sometime after the hearing.  The hearing on 2-5-2020 is just that. It is not likely that the Judge will issue something that day as he will want to issue it in writing. He could however surprise us. I understand your frustration as we are frustrated also, but we do not have the authority to tell the Judge that he has to issue something on that date.  As for the State kicking it down the road, well of course we are not happy with that also. I would hope that he would order the SOR shut down but I do not think he will.   

    Respectfully Tim P ACLU of Michigan SOR Specialist 

  40. TnT

    Thanks for the update Bobby … Yes sounds like more B.S. Guess we will have to wait and see what the judge decides but I wouldn’t hold my breath .

  41. R33

    See from my understanding on the 2-5-20 is supposed to be injunction for relife I my be wrong but that is my understanding. Anyone else agree on that

    • Josh

      @R33……Nope, I think it’s HIGHLY unlikely that we’ll see a injunction or TRO on February 5. I think the judge will order the state to correct it and give them time to do it but the state will take every last second and still not change anything which will force the judge somewhere months down the road to finally step in….Just my opinion

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