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

This is just ridiculous. Dont they have until next monday to respond? I’m hoping judge cleland tells Michigan hes shuttingdown the registry because Michigan just abuses it to the point where its extreme punishment at this point. Only way I see it being constitutional at this point is bringing it back to 1994 where there was no restrictions or reporting at all. And no juveniles were in it.

Got this email recently from Coalition for Useful Registry group. I won’t be able attend because of work. For those who can attend please keep us updated as far where they are with legislative process.

Just a reminder about the Meeting/Training Session we are holding covering “How to work with your elected officials for meaningful changes to the SOR”. The training will take about 2 ½ hours. Updates will also be given including where we are now with the legislative process and what you can do to help this move forward. Questions will be taken at the end of the power point presentation.

When: Tuesday, Oct 22, 2019 at 9:30 am

Location: Unitarian Universalist Church, 5509 S. Pennsylvania Avenue, Lansing, Michigan 4891; Room 410.

Well looks like ill be getting a attorney next year and taking the state to court.

Hello Everyone,

Well I just heard back from Tim from the ACLU, and the State did file a brief of their own, but I don’t know how to find it or get it to post, any help finding it or posting it would be appreciated.

It sounds like Tim doesn’t even know what is happening or going to happen, in my opinion, so if anyone has any thoughts, please chime in, I know he said now they have to respond to the states brief, sounds like another 30 60 or 90 day wait to me. So anyway here is Tim’s reply back to me.

Yes the state has submitted their Brief. We now have to reply to that brief.  What will happen next is still anyone’s guess. I am sorry but you will have to ride it out like the rest of us.  This process has been time consuming and we are working on it daily.  We understand your hoping to get something done soon, and we had also hopped for an answer to the issues quicker than it turns out that will happen.   The best I can tell you is that we have not given up and will still keep working toward a solution that will help as many people on the SOR as we can within the confines that the court orders. 

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
RICHARD SNYDER, Governor of the Mag. J. David R. Grand
State of Michigan, and COL. KRISTE
ETUE, Director of the Michigan State
Police, in their official capacities,
Defendants.
__________________________________________________________
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR
DECLARATORY AND INJUNCTIVE RELIEF
Dana Nessel
Attorney General
Joseph T. Froehlich
Assistant Attorney General
Attorney for Defendants
State Operations Division
P. O. Box 30754
Lansing, MI 48909
517.335.7573
froehlichj1@michigan.gov
Dated: October 22, 2019 P71887
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CONCISE STATEMENT OF ISSUES PRESENTED
1. This Court should certify the severability question to the
Michigan Supreme Court.
2. Contrary to Plaintiffs’ position, unconstitutional portions of
SORA’s 2006 and 2011 amendments may be severed and the
remaining constitutional portions of the statute may be
applied retroactively consistent with SORNA, Mich. Comp.
Laws § 8.5 and the holding of Does #1-5.
3. Plaintiffs are not entitled to interim injunctive relief because
they cannot demonstrate a likelihood of success on the
merits of their claims.
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CONTROLLING OR MOST APPROPRIATE AUTHORITY
USDC ED MI LR 83.40
Mich. Comp. Laws § 8.5
Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016)
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INTRODUCTION
The question at the heart of this case regards a Michigan state
law – whether unconstitutional portions of Michigan’s Sex Offenders
Registration Act (SORA) can be severed from the rest of the Act, and
the consequences to SORA of severance or non-severance going forward.
But the same severability issue at the heart of this case is already
pending before the Michigan Supreme Court on a full merits grant. In
People v. Betts, Michigan Supreme Court No. 148981, the Court is
considering a number of questions, including the very questions posed
by the Plaintiffs in their motion in this case. (Ex. A, order granting
leave to appeal, People v. Betts, Michigan Supreme Court No. 148981).
There can be no dispute that the Michigan Supreme Court is the
final arbiter on the constitutionality of SORA. Because the Michigan
Supreme Court is already considering the questions posed in Plaintiffs’
motion, certification will avoid any possibility of inconsistent results.
Furthermore, the ultimate decision of the Michigan Supreme Court is
likely to be outcome determinative in this case and will not unduly
delay or prejudice the plaintiffs. The standard for certification is easily
met here.
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Thus, there is no reason for this Court to reach the merits of the
severability question. But even if this Court were to reach the issue,
Plaintiffs’ position fails because a fundamental flaw informs the
entirety of Plaintiffs’ analysis – that every piece of SORA that was
added in 2011 is necessarily unconstitutional and must be excised from
the Act. Contrary to Plaintiffs’ position, unconstitutional portions of
SORA’s 2006 and 2011 amendments may be severed and the remaining
constitutional portions of the statute may be applied retroactively
consistent with the federal SORNA, Michigan’s statutory law providing
for severance (Mich. Comp. Laws § 8.5), and the holding of Does #1-5.
ARGUMENT
I. This Court should certify the severability question to the
Michigan Supreme Court.
The district court local rules, Eastern District LR 83.40, provide
the standard for certification. That Rule states:
LR 83.40 – Certification of Issues to State Courts
(a) Upon motion or after a hearing ordered by the Judge sua
sponte, the Judge may certify an issue for decision to the
highest Court of the State whose law governs its disposition.
An order of certification shall be accompanied by written
findings that:
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(1) the issue certified is an unsettled issue of
State law, and
(2) the issue certified will likely control the
outcome of the federal suit, and
(3) certification of the issue will not cause undue
delay or prejudice.
Such order shall also include citation to precedent, statutory
or court rule authority authorizing the State Court involved
to resolve certified questions.
(b) In all such cases, the order of certification shall stay
federal proceedings for a fixed time which shall be
subsequently enlarged only upon a showing that such
additional time is required to obtain a State Court decision
and is not the result of dilatory actions on the part of the
litigants.
(c) In cases certified to the Michigan Supreme Court, in
addition to the findings required by this Rule, the United
States District Court shall approve an agreed statement of
facts which shall be subsequently transmitted to the
Michigan Supreme Court by the parties as an appendix to
briefs filed therein.
In People v. Betts, the Michigan Supreme Court will consider five
questions, the latter ones being the same as those raised by Plaintiffs:
(1) whether the requirements of the Sex Offenders
Registration Act (SORA), MCL 28.721 et seq., taken as a
whole, amount to “punishment” for purposes of the Ex Post
Facto Clauses of the Michigan and United States
Constitutions, US Const, art I, § 10; Const 1963, art 1, § 10;
see People v Earl, 495 Mich 33 (2014), see also Does #1-5 v
Snyder, 834 F3d 696, 703-706 (CA 6, 2016), cert den sub nom
Snyder v John Does #1-5, 138 S Ct 55 (Oct 2, 2017);
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(2) if SORA, as a whole, constitutes punishment, whether it
became punitive only upon the enactment of a certain
provision or group of provisions added after the initial
version of SORA was enacted;
(3) if SORA only became punitive after a particular
enactment, whether a resulting ex post facto violation would
be remedied by applying the version of SORA in effect before
it transformed into a punishment or whether a different
remedy applies, see Weaver v Graham, 450 US 24, 36 n 22
(1981) (“the proper relief . . . is to remand to permit the state
court to apply, if possible, the law in place when his crime
occurred.”);
(4) if one or more discrete provisions of SORA, or groups of
provisions, are found to be ex post facto punishments,
whether the remaining provisions can be given effect
retroactively without applying the ex post facto provisions,
see MCL 8.5; [and]
(5) what consequences would arise if the remaining
provisions could not be given retroactive effect[.] [Ex A.]
Given the already pending Michigan Supreme Court matter,
and the identity of issues between that case and this one,
certification of the severability question is both necessary and
appropriate.
A. The severability issue presents an unsettled issue of
state law.
The primary question raised by Plaintiffs in their motion is
whether the 2011 Amendments to SORA can be severed from the rest of
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the Act, and what the consequences of severance or nonseverance will
be going forward. It is obvious that the law is unsettled in this area
when one considers that the issue currently pending before the
Michigan Supreme Court. Indeed, the issue before that court and the
issue before this Court in Plaintiffs’ motion are identical. Neither Court
has yet issued a substantive ruling on the merits.
Under these circumstances, the timing is appropriate for
certification of the severability question. Certification to a state
supreme court “is most appropriate when the question is new and state
law is unsettled.” In re Amazon.com, Inc., 852 F.3d 601, 607 (6th Cir.
2017) (internal quotes and citation omitted). Further, the appropriate
time to request certification of a state-law issue “is before, not after, the
district court has resolved [it].” State Auto Property and Cas. Ins. Co. v.
Hargis, 785 F.3d 189, 194 (6th Cir. 2015). “[O]therwise, the initial
federal court decision will be nothing but a gamble with certification
sought only after an adverse decision.” Id.
Here, this Court has not resolved the issue of severability, and the
severability question is already pending before the Michigan Supreme
Court. This is not a situation where the Defendants are “seeking
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refuge” in state court only after an unfavorable ruling in federal court.
Hotels.com, 639 F.3d at 654 (citation and alterations omitted).
To the contrary, there is a risk of inconsistent results if this Court
does not certify the question and decides the issue now. There is
potential that this Court could reach one conclusion on the severability
question, only to have the Michigan Supreme Court reach a different
conclusion in Betts. Certification of the question will avoid the potential
for inconsistent results all together, as the Michigan Supreme Court
will be the only Court to decide the issue.
B. The severability issue to be decided by the Michigan
Supreme Court controls the outcome of this action.
Again, the very severability question presented in this case is
already pending before the Michigan Supreme Court on a full merits
grant. And all of Plaintiffs’ claims are likely to be affected by the
decision in Betts – not just the Ex Post Facto claim. It is clear from the
plain language of the Michigan Supreme Court order granting the
application for leave to appeal that the Court will be considering
SORA’s viability as a whole. The scope and breadth of the Court’s
decision is likely to go directly to the entirety of the statutory scheme.
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There is a high likelihood that the decision in Betts will reach all the
provisions challenged by Plaintiffs in this action.
Moreover, the question of severability and the resultant
consequences are ultimately questions of state law. There is no
question that the highest court of the state is the final arbiter of such
state law issues. Thus, “[w]hen it has spoken, its pronouncement is to
be accepted by federal courts as defining state law.” West v. American
Telephone & Telegraph Co., 311 U.S. 223, 236 (1940). It is appropriate
that the Michigan Supreme Court be permitted to resolve the severability question, particularly where the issue is already pending before
the Court and its decision will determine the outcome in this case.
C. Certification to the Michigan Supreme Court will not
cause undue delay or prejudice.
Again, the Michigan Supreme Court has already granted the
application for leave and the severability question is pending before the
Court on a full merits grant. The Court will soon schedule a hearing on
the case, and decision will likely be issued in this term. And the
decision of the Court will resolve the severability question once and for
all, to be accepted by the federal courts as defining state law.
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Indeed, the Defendant in Betts has recently recognized the
identify of issues in that case and this case. In specific, he sought to
extend his deadline to correspond with the briefing schedule here “given
the overlap in issues and the possible certification of questions to this
Court from the federal district Court.” (Ex. B, 2d motion to extend,
People v. Betts, Mich. S. Ct. No. 148981, dated Sept. 11, 2019).
Certification of the severability issue will promote judicial
efficiency and is appropriate where, as here, the question of “state law
is unsettled.” Transamerica Ins. Co. v. Duro Bag Mfg. Co., 50 F.3d 370,
372 (6th Cir.1995), citing Lehman Bros. v. Schein, 416 U.S. 386, 390–91
(1974). Certification will avoid any possibility of inconsistent results,
likely be outcome determinative in this case, and will not unduly delay
or prejudice the plaintiffs. This Court should therefore certify the
severability question under ED MI LR 83.40.1
1 The other option would be to hold this case in abeyance pending the
resolution of Betts so that this Court may follow the resolution of the
severance issue by the state’s highest court.
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II. Unconstitutional portions of SORA’s 2006 and 2011
amendments may be severed, and the remaining
constitutional portions of the statute may be applied
retroactively consistent with SORNA, Mich. Comp. Laws
§ 8.5, and the holding of Does #1-5.
Plaintiffs’ entire severability argument is based upon an incorrect
premise: that every piece of SORA that was added in 2011 is
necessarily unconstitutional and must be excised from the Act. This
flawed assumption is presumably based upon an overly broad reading of
the Sixth Circuit’s opinion in Does #1-5. But this Court has previously
rejected the same incorrect reasoning in a different individual challenge
to SORA. In Derrick Cain v. People of the State of Michigan, et al, Case
No. 3:19-cv-10243, this Court stated that Does #1-5 only addressed
“portions” of the 2006 and 2011 amendments:
Plaintiff relies on Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir.
2016) for his assertion that all post-1997 SORA amendments
are unconstitutional; however, Does #1-5 addressed only
portions of the 2006 and 2011 amendments to SORA—it did
not broadly invalidate all post-1997 amendments as Plaintiff
suggests. [Ex. C, Derrick Cain v. People of the State of
Michigan, et al, Case No. 3:19-cv-10243, opinion and order
dated 6-5-19) (emphasis added).]
Contrary to Plaintiffs’ position, Does #1-5 does not require the
conclusion that every part of SORA passed in 2011 is unconstitutional.
Instead, those specific portions of SORA’s 2006 and 2011 amendments
Case 2:16-cv-13137-RHC-DRG ECF No. 66 filed 10/22/19 PageID.959 Page 12 of 29
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identified as unconstitutional by the Sixth Circuit in Does #1-5 may be
severed and the remaining constitutional portions of the statute may be
applied retroactively consistent with the federal Sex Offenders
Registration and Notification Act (SORNA), Mich. Comp. Laws § 8.5,
and the holding of Does #1-5.
A. The Michigan SORA extends beyond the federal
SORNA in three distinct respects.
A review of the Michigan law discloses the particular ways in
which it extends beyond the federal SORNA, and the legislative intent
for the 2011 amendments was to bring SORA into compliance with
federal SORNA. The Legislature provided that SORA extends beyond
the requirements of SORNA, which may be digested into three distinct
categories, which may be severed without compromising Michigan’s
compliance with SORNA. The remainder of Michigan may be given
effect, which is constitutional as it would then parallel the requirements
of the federal SORNA.
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1. The enactment of SORA and the 2006 SORA
amendments
Michigan’s SORA first went into effect on October 1, 1995. 1994
P.A. 295. It has since been amended 20 times.2 The sex offender
registry as it first existed in 1995 was not public and was accessible
only by law enforcement. People v. Dipiazza, 778 N.W.2d 264, 267
(Mich. Ct. App. 2009). In 1999, the registry became available to the
public through the Internet. Mich. Comp. Laws § 28.728(2), as amended
by 1999 P.A. 85; Dipiazza, 778 N.W.2d at 267. Later amendments have
added offenses requiring registration, changed the duration of required
registration, and imposed additional registration requirements.
In 2005, SORA was amended by the Legislature to create “student
safety zones.” A student safety zone was defined as “the area that lies
1,000 feet or less from school property.” Mich. Comp. Laws § 28.733(f),
as added by 2005 P.A. 121. Offenders were generally precluded from
residing within student safety zones. § 28.735(1).
2 See 2014 P.A. 328, 2013 P.A. 2, 2013 P.A. 149, 2011 P.A. 17, 2011 P.A.
18, 2006 P.A. 46; 2006 P.A. 402, 2005 P.A. 121, 2005 P.A. 123, 2005 P.A.
127, 2005 P.A. 132, 2005 P.A. 301; 2005 P.A. 322, 2004 P.A. 237, 2004
P.A. 238, 2004 P.A. 240, 2002 P.A. 542, 1999 P.A. 85; 1996 P.A. 494,
1995 P.A. 10.
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Another amendment in 2005 precluded offenders from working or
loitering within student safety zones. Mich. Comp. Laws § 28.734, as
added by 2005 P.A. 127. These amendments because effective in 2006
and are commonly referred to as the 2006 SORA amendments.
2. The enactment of SORNA and SORNA’s
Constitutional status
On the federal side, in 2006, the United States Congress moved
toward a comprehensive set of federal standards to govern state sex
offender registration and notification programs by enacting SORNA, as
part of the Adam Walsh Child Protection and Safety Act. Pub. L. No.
109-248, §§ 102-155, 120 Stat. 587 (codified in part as amended at 34
U.S.C. §§ 20901 et seq.). The goals of SORNA include making the
federal and state:
systems more uniform and effective by repealing several
earlier federal laws that also (but less effectively) sought
uniformity; by setting forth comprehensive registrationsystem standards; by making federal funding contingent on
States’ bringing their systems into compliance with those
standards; by requiring both state and federal sex offenders
to register with relevant jurisdictions (and to keep
registration information current); and by creating federal
criminal sanctions applicable to those who violate the Act’s
registration requirements.
Reynolds v. United States, 556 U.S. 432, 435 (2012).
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As Spending Clause legislation, SORNA conditions full grant
funding on a state’s substantial implementation of certain requirements. 34 U.S.C. § 20927(a). State registries must collect specific
information, such as names, residence, work, and school addresses,
physical descriptions, automobile descriptions and license plate
numbers, criminal history information, information on intended
international travel plans, and photographs. Id. § 20914(a), (b).
SORNA also classifiers offenders into tiers and sets minimum periods of
registration based on the nature and seriousness of the sex offense and
the offender’s history of recidivism. Id. §§ 20911(2)-(4), 20915. SORNA
requires that a state notify certain federal agencies regarding its
registrants. Id. § 20923. SORNA also provides for public dissemination
of certain information on Internet sites. Id. § 20920.
SORNA requires sex offenders to “register, and keep the
registration current, in each jurisdiction where the offender resides,
where the offender is an employee, and where the offender is a student”
by, “not later than 3 business days after each change of name,
residence, employment, or student status, appear[ing] in person in at
least 1 jurisdiction involved . . . and inform[ing] that jurisdiction of all
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changes in the information required for that offender in the sex offender
registry.” 34 U.S.C. § 20913(a), (c). The SORNA, however, does not
prohibit registrants from living or working in any particular location.
The Sixth Circuit has held that “[SORNA] does not increase the
punishment for the past conviction” and therefore its retroactive
application does not violate the Ex Post Facto Clause. United States v.
Felts, 674 F.3d 599, 606 (6th Cir. 2012); see also United States v.
Shannon, 511 F. App’x 487, 492 (6th Cir. 2013) (applying reasoning of
Smith and Felts to hold that SORNA’s juvenile registration requirements also did not present an ex post facto violation). In fact, this is the
“unanimous consensus among the circuits.” Felts, 674 F.3d 605–06.
3
In 2011, Michigan’s SORA underwent significant changes to bring
the law into compliance with the federal SORNA. It was the manifest
intention of the Michigan Legislature.4
3 See also Am. Civil Liberties Union of Nevada v. Masto, 670 F.3d 1046,
1053 (9th Cir. 2012) (“Many of our sister circuits, however, have
considered this issue. Unanimously they have concluded that
retroactive imposition of SORNA requirements is constitutional.”).
4 See Ex. D, House Fiscal Agency Legislative Analysis of Senate Bills
188, 189 and 206, recognizing that amendments to SORA “would revise
the Sex Offenders Registration Act to conform to mandates under the
federal Sex Offenders Registration and Notification Act[.]”
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Under the 2011 amendments to SORA, sex offenders were
classified into three tiers according to the offenses of which they were
convicted. Mich. Comp. Laws § 28.722(r) to (w), as added by 2011 P.A.
17 (taking effect on April 12, 2011). Tier I offenders were required to
register for 15 years, Tier II offenders for 25 years, and Tier III
offenders for life. § 28.725(10) to (12), as amended by 2011 P.A. 17.
Offenders were also required to report in person when they changed
residences, changed places of employment, discontinued employment,
enrolled as a student with institutions of higher education, discontinued
such enrollment, changed their names, temporarily resided at any place
other than their residence for more than seven days, established an email or instant message address or “any other [internet] designations,”
purchased or began regularly operating a vehicle, or discontinued such
ownership or operation. § 28.725 (1), as amended by 2011 P.A. 17.
3. Differences between SORNA and SORA and the
holding of Does #1-5
Michigan’s SORA goes beyond the baseline requirements of
SORNA in three significant ways that are particularly germane to the
Sixth Circuit’s ruling in Does #1-5.
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First, although SORNA (through its implementation guidelines,
73 Fed. Reg. at 38,059 (July 2, 2008)) requires a jurisdiction to make
public the sex offense for which an offender is registered, SORNA does
not require a State to make the tier classification viewable on the public
website as is provided in SORA. Mich. Comp. Laws § 28.728(2)(l).
Second, SORA goes beyond SORNA’s in-person reporting
requirements. SORNA requires jurisdictions to require periodic inperson appearances to verify registration information and take a
photograph, and also specifies that such in-person appearances occur at
least annually to low-tier offenders and quarterly for higher-tier
offenders. 42 U.S.C. § 16916. SORNA further requires an offender to
appear in person to update a registration within three business days
after any change of name, residence, employment, or student status. 42
U.S.C. § 16913(c). SORA, in contrast, requires an offender to appear in
person to update when the offender intends to temporarily reside at any
place other than his or her residence for more than seven days, when
the offender establishes any electronic mail or instant message address,
or any other designations used in internet communications or postings,
and when the offender purchases or begins to regularly operate any
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vehicle, and when ownership or operation of the vehicle is discontinued.
Compare Mich. Comp. Laws § 28.725(1)(e)-(g) with 42 U.S.C.
§ 16914(a), 16915a(a).
Third, and finally, SORNA does not require a jurisdiction to
create any geographic exclusions or “student safety zones.” Michigan,
on the other hand, has done exactly that by enactment its statutory
scheme, see Mich. Comp. Laws §§ 28.734 to 28.736.
The specific areas where SORA has gone further than SORNA
was the focus of the Sixth Circuit’s decision in Does #1-5. Indeed, the
Sixth Circuit explained that SORA is punitive because of the aggregate
effect of these aspects of the law – all of which are the areas identified
above where SORA differs from SORNA. Specifically, the Court
reviewed these three statutory features that rendered the statute
punitive: (1) the student safety zones where an offender is not
permitted to live, work or loiter; (2) the public classification of a
offenders into tiers without an individualized assessment; and (3) the
requirements on offenders to appear in person to report even minor
changes to certain information. See Does #1-5, 834 F.3d at 702, 702–03,
705. The Court summed up this point based on these three attributes:
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A regulatory regime [1] that severely restricts where people
can live, work, and “loiter,” [2] that categorizes them into
tiers ostensibly corresponding to present dangerousness
without any individualized assessment thereof, and [3] that
requires time-consuming and cumbersome in-person
reporting, all supported by—at best—scant evidence that
such restrictions serve the professed purpose of keeping
Michigan communities safe, is something altogether
different from and more troubling than Alaska’s firstgeneration registry law.
* * *
We conclude that Michigan’s SORA imposes punishment. Id. at
705 (brackets added).
While Does #1-5 explained that “the retroactive application of SORA’s
2006 and 2011 amendments to Plaintiffs is unconstitutional, and it
must therefore cease,” 834 F.3d at 706, it was the cumulative effect of
these three specific provisions that compelled the Sixth Circuit’s
determination that the current SORA has “much in common with
banishment and public shaming,” “and has a number of similarities to
parole/probation.” Id. at 701, 703.5 If these three problematic
provisions of SORA may be severed, it would leave a constitutionally
valid Act that does not run afoul of Ex Post Facto.
5 For additional discussion regarding the differences between SORA and
SORNA, and how the provisions of SORA went beyond SORNA violated
the Ex Post Facto clause, see Ex E, Brief for United States as Amicus
Curiae, Snyder v. Does #1-5, U.S. S. Ct. No. 16-768, pp. 14–20.
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B. The provisions of SORA that differ from SORNA and
were identified as problematic by the Sixth Circuit
may be severed, and the remaining constitutional
portions may be applied retroactively.
Federal law favors severability. See INS v. Chadha, 462 U.S. 919,
934 (1983). It is also well settled under Michigan law that, although a
statute may be invalid or unconstitutional in part, the part that is valid
will be sustained where it can be separated from that part which is
void. Mathias v. Cramer, 40 N.W. 926, 927 (Mich. 1888). The statute
enforced after the invalid portion of the act is severed must, however, be
reasonable in light of the act as originally drafted. Caterpillar, Inc. v.
Dep’t of Treasury, 470 N.W.2d 80, 85 (Mich. Ct. App. 1991) rev’d on
other grounds, 488 N.W. 182 (Mich. 1991).
The Michigan Legislature has provided a general severability
clause that applies to all its enactments. The clause provides:
In the construction of the statutes of this state the following
rules shall be observed unless such construction would be
inconsistent with the manifest intent of the legislature, that
is to say: If any portion of an act or the application thereof
to any person or circumstances shall be found to be invalid
by a court, such invalidity shall not affect the remaining
portions or applications of the act which can be given effect
without the invalid portion or application . . . , and to this
end acts are declared to be severable.
Mich. Comp. Laws § 8.5.
Case 2:16-cv-13137-RHC-DRG ECF No. 66 filed 10/22/19 PageID.969 Page 22 of 29
20
At the outset, the Defendants concede that Sixth’s Circuits ruling
in Does #1-5 precludes the retroactive application of the 2006
amendments, Mich. Comp. Laws §§ 28.734 through 28.736, which are
SORA’s “student safety zone” provisions. These statutory provisions
are not required by SORNA. The remaining provisions of SORA can be
given effect without the 2006 amendments. The 2006 amendments are
separate provisions that operate independently from the rest of SORA.
The remaining question, accordingly, is whether the bulk of the
2011 amendments to SORA may be enforced without reference to the
problematic provisions identified by the Sixth Circuit in Does #1-5.
Applying the principles of severability as stated above, the answer is
yes, relying on the Legislature’s clear intent to make Michigan’s law
SORNA compliant. Like the 2006 amendments, the problematic 2011
provisions can be severed from the rest of SORA.
To begin, the requirement of Michigan law, Mich. Comp. Laws
§ 28.728(l), that an offender’s tier classification be made public can be
severed from the Act without compromising the effectiveness of the law.
Offenders will still be classified into tiers, but the tiers will not be made
public. SORNA does not require this information to be public.
Case 2:16-cv-13137-RHC-DRG ECF No. 66 filed 10/22/19 PageID.970 Page 23 of 29
21
Further, SORA’s in-person reporting requirements, § 28.725(1)(e)-
(g), mandating that an offender appear in person to update certain
information may also be severed without compromising the Act:
when the offender intends to temporarily reside at any place other
than his or her residence for more than seven days;
when the offender establishes any electronic mail or instant
message address, or any other designations used in internet
communications or postings; and
when the offender purchases or begins to regularly operate any
vehicle, and when ownership or operation of the vehicle is
discontinued.
SORNA does not require this in-person reporting. Offenders would still
be required to appear in person to update a registration within three
business days after any change of name, residence, employment, or
student status. Mich. Comp. Laws § 28.725(1)(a)-(d). The reporting
requirements of Mich. Comp. Laws § 28.725(1)(e)-(g) are not “so
essential, and [] so interwoven with others, that it cannot be presumed
that the legislature intended the statute to operate otherwise than as a
whole.” Moore v. Fowinkle, 512 F.2d 629, 632 (6th Cir. 1975).
Severing the problematic provisions of SORA will not require this
Court to “re-write” the statute. The fact that they are not in separate
sections is not significant. Mich. State AFL-CIO v. Mich. Emp. Rel.
Case 2:16-cv-13137-RHC-DRG ECF No. 66 filed 10/22/19 PageID.971 Page 24 of 29
22
Com’n, 538 N.W.2d 433, 447 (Mich. Ct. App. 1995). Indeed, the
provisions to be excised are discrete and easily removed, and line
drawing is not inherently complex. (See Ex. F, redlined version of
SORA excising problematic provisions identified by Court in Does #1-5
for offenders committed their offenses on or before April 12, 2011).
Here, SORA remains a constitutionally valid and enforceable law,
even retroactively, when the problematic provisions of the 2006 and
2011 amendments are severed, which gives effect to the clear legislative
intent to make Michigan law SORNA compliant. This approach is
consistent with the requirements Michigan law, Mich. Comp. Laws
§ 8.5, and the holding of Does #1-5.6
6 It should also be noted that Plaintiffs’ position regarding revival of
previous SORA versions is incorrect if somehow the entirety of the 2011
SORA amendments was found unconstitutional. Under Michigan law,
it has long been held that where a court has held a law invalid, it leaves
all preceding laws on that subject in force. McClellan v Recorder’s
Court, 201 N.W. 209, 212 (Mich. 1924). See also 1A Singer, Sutherland
Statutory Construction (6th ed), § 23:25, p 544 (“An unconstitutional
statute which purports to repeal a prior statute by specific provision
does not do so where, under standard rules governing separability, a
hiatus in the law would result from the impossibility of substituting the
invalid provisions for the legislation that was to be repealed …”). And
Mich. Comp. Laws § 8.4 has no application here because the 2011
amendments to SORA were not repealed. This means that if the
entirety of the 2011 amendments of SORA were struck, prior versions of
SORA remain in force so long as they are not held unconstitutional.
Case 2:16-cv-13137-RHC-DRG ECF No. 66 filed 10/22/19 PageID.972 Page 25 of 29
23
III. Plaintiffs are not entitled to interim injunctive relief
because they cannot demonstrate a likelihood of success
on the merits of their claims.
Plaintiffs’ remaining claim asking for interim relief is based upon
the same flawed assumption as their severability analysis. Contrary to
Plaintiffs’ position, not every piece of SORA that was added in 2011 is
necessarily unconstitutional and must be excised from the Act. Thus,
Plaintiffs are not entitled to interim relief.
In determining whether to grant a preliminary injunction, the
following four factors are considered:
• whether the movant has demonstrated a strong likelihood of
success on the merits;
• whether he would suffer irreparable injury without the injunction;
• whether the injunction would cause substantial harm to others;
and
• whether issuing the injunction would serve the public interest.
Doe v. Univ. of Cincinnati, 872 F.3d 393, 399 (6th Cir. 2017).
Although the four factors “are factors to be balanced” and “not
prerequisites to be met,” a preliminary injunction cannot issue where
“there is simply no likelihood of success on the merits….” Id. (internal
quotation marks omitted). “When a party seeks a preliminary
injunction on the basis of a potential constitutional violation, the
Case 2:16-cv-13137-RHC-DRG ECF No. 66 filed 10/22/19 PageID.973 Page 26 of 29
24
likelihood of success on the merits often will be the determinative
factor.” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012).
Importantly, “[t]he party seeking the preliminary injunction bears
the burden of justifying such relief, including showing irreparable harm
and likelihood of success,” and he faces a “much more stringent
[standard] than the proof required to survive a summary judgment
motion” because a preliminary injunction is “an extraordinary remedy.”
McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012). It is “reserved only
for cases where it is necessary to preserve the status quo until trial.”
Hall v. Edgewood Partners, 878 F.3d 524, 526 (6th Cir. 2017).
Here, Plaintiffs are not entitled to broad injunctive relief because
they cannot demonstrate a likelihood of success on the merits of their
claims. For the reasons stated in Section II, the retroactive application
of portions of SORA’s 2011 amendments is constitutional.
Indeed, continued retroactive enforcement of portions of the 2011
amendments is consistent with the requirements of the federal SORNA,
and federal courts have consistently and universally held that SORNA
passes constitutional muster. The unconstitutional portions of SORA’s
2006 and 2011 amendments that are inconsistent with SORNA may be
Case 2:16-cv-13137-RHC-DRG ECF No. 66 filed 10/22/19 PageID.974 Page 27 of 29
25
severed from the rest of the Act, and the remaining constitutional
portions may be applied retroactively.7 Under these circumstances,
Plaintiffs are not entitled to interim relief.
CONCLUSION AND RELIEF SOUGHT
Defendants respectfully request that this Court certify the
severability question to the Michigan Supreme Court, or, alternatively,
Defendants request that this Court hold that unconstitutional portions
of SORA’s 2011 amendments that are inconsistent with SORNA may be
severed from the rest of the Act, and the remaining constitutional
portions may be applied retroactively.
7 Plaintiffs provide no authority for their contention that Defendants,
and not Plaintiffs, should bear the burden of providing notice to class
members. Further, Plaintiffs have not established that “all prosecutors
and all Michigan law enforcement personnel who have responsibility for
enforcing SORA” are those “in active concert or participation” with the
Defendants such that Defendants are required to provide notice to them
under Fed. R. Civ. P. 65.
Case 2:16-cv-13137-RHC-DRG ECF No. 66 filed 10/22/19 PageID.975 Page 28 of 29
26
Respectfully submitted,
Dana Nessel
Attorney General
s/Joseph T. Froehlich
Joseph T. Froehlich
Assistant Attorney General
Attorney for Defendants
State Operations Division
P. O. Box 30754
Lansing, MI 48909
517.335.7573
froehlichj1@michigan.gov
Dated: October 22, 2019 P71887
CERTIFICATE OF SERVICE (E-FILE)
I hereby certify that on October 22, 2019, I electronically filed the above
document(s) with the Clerk of the Court using the ECF System, which
will provide electronic copies to counsel of record.
s/Joseph T. Froehlich
Joseph T. Froehlich
Assistant Attorney General
Attorney for Defendants
State Operations Division
P. O. Box 30754
Lansing, MI 48909
517.335.7573
froehlichj1@michigan.gov
P71887
Case 2:16-cv-13137-RHC-DRG ECF No. 66 filed 10/22/19 PageID.976 Page 29 of 29
John Does #1-6 v. Richard Snyder, et al.
USDC-ED No: 2:16-cv-13137
Honorable Robert H. Cleland
Magistrate Judge David R. Grand
INDEX OF EXHIBITS
Exhibit A………………………………………………………………………………Order,
People of the State of Michigan v. Betts, Jr.
MI Supreme Court No. 148981
Exhibit B………………………. Second Motion to Extend Time to File Brief,
People of the State of Michigan v. Betts, Jr.
MI Supreme Court No. 148981
Exhibit C…………………………………………………………… Opinion and Order
Cain v. Snyder, et al., USDC-ED No. 19-10243
Exhibit D …………………………………….. House Fiscal Legislative Analysis
Exhibit E………………………Brief for the United States as Amicus Curiae
Snyder, et al. v. John Does #1-5, et al.
U.S. Supreme Court No. 16-768
Exhibit F……………Redlined Sex Offenders Registration Act 295 of 1994
Case 2:16-cv-13137-RHC-DRG ECF No. 66-1 filed 10/22/1

I found the states response… I tried posting it on here lol …That didn’t work….. they are saying that the 2006 and the 2011 amendments can be served …not as a whole but in part.. Contrary to Plaintiffs’ position, unconstitutional portions of
SORA’s 2006 and 2011 amendments may be severed and the
remaining constitutional portions of the statute may be
applied retroactively consistent with SORNA, Mich. Comp.
Laws § 8.5 and the holding of Does #1-5.
…which means that life is life if they have their way…

going to the higher up..for serve-ability…welcome to the ride ..please keep all hands and feet inside at all times!!! hope ACLU…can pull the plug!!! This ride is due to be over!!

You can find the response at https://ecf.mied.uscourts.gov Good luck!!

Hello,

I was wondering has anyone been able to find the brief that the State of Michigan filed, in response to the ACLU brief, this entire situation is getting ridiculous, nothing is getting done.

WHY, the State gets to file another brief when they have obviously lost, and are out of options, yet they file a brief, and then we have to wait even longer for the ACLU to respond to their brief.

The Judge needs to put a STOP to this, and STOP letting both sides just continue to kick the can back in forth to each other. The Judge needs to grant the injunction, while they fix the registry or better yet, shut the registry down until they finally revise the registry and all pre-sorna registrants are removed from it.

So does anyone know how I can find the link to the States most recent brief ? Thanks in advance.

So…… Now whos got the next move in this B.s game they are playing with thousands of Michigans citizens lives ???? Are we waiting on the federal judge to re rule on a ruling he has already made ? Last I remember he already ruled their B.s was unconstitutional and had to STOP ? So…. now what are we waiting on ? Does anyone know ?????