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

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 parties are on schedule with their briefs. The plaintiffs filed their first
brief on September 24, 2019 and the respondents filed their response brief on
October 22, 2019. The plaintiffs’ reply brief is due November 12, 2019.
2. There have been no further follow-up meetings between the parties and state

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.
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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: October 28, 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

This is crazy I’m going to find a lawyer at the first of the year

I. Introduction
Defendants argue that a preliminary injunction is improper because Plaintiffs
are not likely to succeed on the merits. In fact, Plaintiffs seek a permanent injunction, and have already succeeded: this Court, consistent with Does #1-5 v. Snyder,
834 F.3d 696 (6th Cir. 2016) (Does I), held that the Sex Offenders Registration Act
(SORA), M.C.L. § 28.721 et seq., is punishment and that retroactive application of
the 2006 and 2011 amendments is unconstitutional. Stip. Order, ECF 55.
Of the other injunction factors—none of which Defendants contest—the
most important is irreparable injury. Plaintiffs suffer under SORA every day, despite the Sixth Circuit’s decision three years ago that SORA is punishment, and
despite this Court’s declaratory ruling in May. Indeed, even where registrants,
relying on that ruling, have sought clarification that SORA’s unconstitutional
provisions do not apply to them, Defendants have refused to lift the unconstitutional conditions “in the absence of further direction from Judge Cleland as to the
entire class.” Exh. A, Fabian/Michigan State Police Letters. Thus, the question is
not whether injunctive relief should be granted, but only what its scope should be.
II. Defendants Do Not Dispute Injunctive Relief on the 2006 Amendments.
Defendants concede that the Sixth Circuit’s decision “precludes the retroactive application of the 2006 amendments.” ECF 66, Pg.ID#970. They offer no
reason why this Court should not enjoin the enforcement of M.C.L. §§ 28.733-736
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and the second sentence of M.C.L. § 28.730(3), as applied to Does #1-3 and the
pre-2006 ex post facto subclass.1 The Court should grant that relief.
III. Defendants’ Revisionist Reading of Does I Is Untethered from the
Actual Sixth Circuit Decision.
Defendants argue that when the Sixth Circuit held that the retroactive application of SORA’s 2006 and 2011 amendments must cease, what the Sixth Circuit
really meant to say was that retroactive application of M.C.L. §§ 28.725(1)(e)-(g),
28.728(2)(l), and 28.733-736—which exceed the Sex Offenders Registration and
Notification Act (SORNA)—must cease. Though certainly creative, this position is
entirely untethered from the Sixth Circuit’s actual decision,
2
and assumes that the
Court of Appeals is not capable of saying what it means. If the Sixth Circuit only
cared about provisions that differ from SORNA, why did it never once mention
SORNA? And if the Sixth Circuit was only concerned about a few provisions, why
did it not remand with instructions simply to enjoin those specific subsections?

1 Defendants address only the exclusion zones, but M.C.L. § 28.730(3), which
provides for e-notice to the public, was also added in 2006, and must be enjoined.
2 Defendants’ revisionist reading also contradicts the state’s own prior interpretation of Does I. When seeking cert, the state argued that “the Sixth Circuit’s decision prevents Michigan wholesale from applying SORA’s 2006 and 2011 amendments retroactively,” rather than allowing specific provisions to be severed. Cert
Pet., Snyder v. Does, U.S. S. Ct. 16-768, at 15. The state identified the Sixth
Circuit’s central concerns as lifetime registration, classification without individualized assessments, geographic exclusion zones, and frequent in-person
reporting—a different and longer list than Defendants argue now. Id. at 16-24.
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The simple reason is that Does I was based on the cumulative impact of a
“byzantine code governing in minute detail the lives of the state’s sex offenders.”
Does I, 834 F.3d at 697. Under Smith v. Doe, 538 U.S. 84 (2003), the ex post facto
analysis requires courts to consider the statute as a whole, asking whether “the
statutory scheme,” the “regulatory scheme,” or “the Act” imposes punishment, in
toto. Id. at 92, 94, 96-97, 99, 104-05. This makes sense, because even if a single
obligation, standing alone, might not be punishment, the combined effect of many
obligations can make a statute punitive. Whether a law’s cumulative burdens are
punishment will depend on how many restrictions the law imposes, the duration,
magnitude, and interplay of the restraints, the penalties for violations, and the
relationship between the restrictions and the state’s public safety goals. For example, whether in-person reporting is punitive may depend on whether one must
verify basic information infrequently for a limited time or whether one must report
a vast array of information often, immediately, and for life, with even inadvertent
noncompliance leading to felony charges and the risk of imprisonment.
Consistent with Smith, the Sixth Circuit in Does I analyzed SORA as whole,
applying the factors of Kennedy v. Mendoza-Martinez, 372 U.S. 114 (1963), with
different SORA provisions being relevant to different factors. For example, in finding SORA similar to historical punishments, the Court likened the exclusion zones
to banishment, the unappealable public tier classifications and registration of
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people without sex convictions to public shaming, and the in-person reporting
requirements, exclusion zones, and risk of imprisonment (for noncompliance) to
probation and parole. Does I, 834 F.3d at 702-03. In finding that SORA is not
rationally related to a non-punitive purpose, the Court considered SORA’s overall
impact, citing the lack of individualized assessment and ineffective nature of
offense-based registration. Id. at 704-05. And the Court repeatedly emphasized that
for Tier III registrants, SORA’s burdens last for life. Id., at 703, 705. Defendants
would let most of these burdens stand, even though Does I’s core holding is that
the cumulative impact of the 2006 and 2011 changes made SORA punitive, and
that therefore the retroactive enforcement of those amendments must cease.
Defendants try to recast Does I as limiting only (1) publication of tier information, (2) in-person reporting on travel, electronic identifiers and vehicles; and
(3) exclusion zones. But the Sixth Circuit identified many other aspects of SORA
as punitive, including its lifetime reach, its lack of individualized assessments, its
application to registrants without convictions for sex offenses, the serious sanctions
for even inadvertent violations, and the lack of relationship to public safety. Moreover, the Court did not just question publication of tier information, but also the
fact that tier classifications are both unappealable and offense-based rather than
risk-based. Id. at 698, 702, 704-05. Nor were the Court’s concerns about reporting
limited to the in-person requirement for travel, electronic identifiers, and vehicle
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reporting.3 Rather the Court found it punitive that registrants must frequently and
immediately report a vast array of trivial information. Id. at 698, 703, 705.
Defendants argue that under United States v. Felts, 674 F.3d 599 (6th Cir.
2012), any SORA provision that derives from SORNA must be permissible. Not
so. Does I, without mentioning Felts, found many SORNA-derived provisions of
SORA—like lifetime registration, immediate in-person reporting, and unappealable tier classifications without individualized assessments—to be punitive. The
questions in Felts and Does I were different. Mr. Felts was convicted under
SORNA for not registering after moving from one state to another. The issue was
whether Felts’ two-year sentence was retroactive punishment for his original sex
offense. The Court said it was not: “SORNA provides for a conviction for failing
to register; it does not increase the punishment for the past conviction.” Id. at 606.
The Court rejected Felts’ argument that he was being sent to prison twice for the
same offense, viewing his failure to register as “entirely separate” from the earlier
crime. Id. Thus, Felts addressed the question of whether a prison sentence for failure to comply with SORNA’s basic registration requirement4 punishes a new or old

3 SORNA in fact requires immediate reporting of this information; the only
difference from SORA is that reporting need not be in person. See Department of
Justice, National Guidelines for Sex Offender Registration and Notification, at 52,
available at https://www.smart.gov/pdfs/final_sornaguidelines.pdf.
4 Because the constitutionality of a basic, initial registration requirement had
been addressed by the Supreme Court in Smith, it is unsurprising that the Sixth
Circuit upheld Felts’ imprisonment for his failure to meet that requirement.
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offense. Imprisonment is indisputably punishment, so the Felts Court never
considered whether SORNA’s burdens are punishment. In Does I, the Sixth Circuit
did consider those burdens (to the extent they are mirrored in SORA) and found
them to be punitive.
5 Plaintiffs here are not challenging prison sentences imposed
for failure-to-register convictions, but are bringing an affirmative civil challenge to
SORA’s cumulative burdens. Does I is controlling; Felts is inapposite.
Finally, Defendants’ revisionist account contradicts the Sixth Circuit’s holding that its ex post facto ruling mooted the other claims “because none of the contested provisions may now be applied to the plaintiffs.” Does I, 834 F.3d at 706.
The Does I plaintiffs had challenged retroactive lifetime registration as violating
due process; the vagueness of various reporting requirements; restrictions on
registrants’ fundamental rights to speak, parent, travel and work; registration of
people who were never convicted, or did not commit sex offenses; and SORA’s

5 There is no reason to believe Michigan will lose federal funding if it amends
SORA to comply with Does I. SORNA requires only “substantial” compliance and
it excepts a state’s inability to comply due to court rulings. 34 U.S.C. § 20927(b).
In determining “substantial compliance” for funding purposes, DOJ has considered
both state and federal court rulings of unconstitutionality requiring states to deviate
from SORNA. See e.g., Department of Justice, SORNA Substantial Implementation Review State of Kansas, at 3 (July 19, 2011), https://smart.gov/pdfs/sorna/
Kansas.pdf; and SORNA Implementation Review State of Nevada, at 1 (Feb.
2011), https://smart.gov/pdfs/sorna/Nevada%20.pdf. Under the National Guidelines for Sex Offender Registration and Notification, 11 (July 2008) the federal
government “will consider on a case-by-case basis whether jurisdictions’ rules or
procedures that do not exactly follow the provisions of SORNA or these Guidelines ‘substantially’ implement SORNA.” See http://www.smart.gov/guidelines.htm.
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strict liability provisions. Pls’ 1st Brf, Does #1-5 v. Snyder, 15-cv-2346/2486.
Those other challenges would not have been moot if the Sixth Circuit’s decision
only voided M.C.L. §§ 28.725(1)(e)-(g), 28.728(2)(l), and 28.733-.736.
IV. The 2011 Amendments Are Not Severable.
Severability focuses on whether unconstitutional provisions are so entangled
with valid portions of a statute that they cannot be cleanly cut out. Blank v. Dep’t
of Corrections, 611 N.W.2d 530, 540 (Mich. 2000). Here, because the Sixth Circuit was focused on the cumulative impact of the amendments, one cannot simply
excise a couple subsections and be done. Rather, this Court would need to engage
in “quintessentially legislative work” to “rewrit[e] state law to confirm it to constitutional requirements.” Ayotte v. Planned Parenthood of Northern New England,
546 U.S. 320, 329 (2006). The point is not that every word added in 2011 is unconstitutional6—there may be provisions that the legislature could retain without their
cumulative impact being punitive. But it is up to the legislature to decide whether,
in making SORA less punitive, it wants shorter non-public registration or longer
public registration based on individual assessments. Similarly, reporting could be
made less punitive by decreasing its frequency or by substituting on-line/mail

6 For example, the 2006 amendments define a minor as a person younger than
eighteen. M.C.L. § 28.733(c). Although that is perfectly constitutional, Defendants
acknowledge that § 28.733(c) must be stricken because it makes no sense standing
alone. The same analysis applies to the 2011 amendments.
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reporting for in-person reporting. But those are legislative, not judicial, choices.7
The responsibilities of the judicial and legislative branches do not change
just because the legislature fails to act. Plaintiffs do not dispute that enjoining
SORA for pre-2011 registrants is strong medicine. But after more than three years
of legislative inaction, strong medicine is needed. The Court can always delay the
injunction’s effective date for 60 days, which is plenty of time to pass a new law.
V. Certification Is Unnecessary, and Is Impermissible so Long as the
Punishment of Plaintiffs Continues.
Not one of L.R. 83.40’s requirements for certification is met here. First,
Michigan’s severability law is not “unsettled.” L.R. 83.40(a)(1). Federal courts
regularly engage in severability analyses of Michigan statutes.8 Here, Michigan
severability law compels a finding that the 2011 amendments are not severable.
Defendants’ arguments to the contrary do not make this a novel question. See
Lehman Bros. v. Schein, 416 U.S. 386, 390-91 (1974) (“mere difficulty in ascertaining local law is no excuse for remitting the parties to a state tribunal for the
start of another lawsuit”); Duryee v. U.S. Department of Treasury, 6 F. Supp. 2d

7 Defendants argue that the 2011 amendments reflect the legislature’s desire to
make Michigan’s law SORNA-compliant. But the question is not what the legislature wanted in 2011, but what the legislature wants now that the 2011 amendments cannot be retroactively applied. A unified statute for all registrants would be
very different than one where registration requirements depend on the offense date.
8 See, e.g., Int’l Outdoor, Inc. v. City of Troy, 361 F.Supp.3d 713, 718 (E.D.
Mich. 2019); Larkin v. State of Mich., 883 F. Supp. 172, 180 (E.D. Mich. 1994).
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700, 704 (S.D. Ohio 1995) (denying certification because parties’ analysis of how
Ohio severability law should apply demonstrated that the question was not novel).
Defendants argue that the question must be novel, because the Michigan
Supreme Court has granted leave on the allegedly “identical” issue in People v.
Betts, 928 N.W.2d 699 (Mich. 2019). But the issues are not identical. The Sixth
Circuit has already decided as a matter of federal law that retroactive application of
the 2011 amendments is unconstitutional. Thus the severability issue here is
whether those deeply embedded amendments can be severed. By contrast, the
Michigan Supreme Court, which unlike this Court is not bound by the Sixth Circuit, will first address the threshold questions of whether SORA is punishment, and
if it became punitive only upon the enactment of certain amendments. Were the
Court to decide, for example, that SORA became punitive after the 1997 amendments, then the question would be whether those amendments are severable.
With respect to the second requirement for certification, Defendants claim
that “[t]here is a high likelihood that the decision in Betts will reach all the provisions challenged by Plaintiffs,” ECF 66, Pg.ID#957, and that therefore “the issue
certified will likely control the outcome of the federal suit.” L.R. 83.40(a)(2). That
is simply not true. Certifying a question on severability of the 2011 amendments
affects only the ex post facto subclasses. The Betts’ leave grant does not address
any of the claims of the primary class (which comprises both pre- and post-2011
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registrants), namely whether SORA is unconstitutionally vague, imposes strict
liability without due process, and violates Plaintiffs’ First Amendment rights. 1st
Am. Compl., ECF 34, Pg.ID# 384-86. See Warren Prescriptions, Inc. v. Walgreen
Co., 2018 WL 287951, at *3 (E.D. Mich., Jan. 4, 2018) (denying certification
because multiple other claims would survive regardless).
Because L.R. 83.40(a)(2) must be read in tandem with subsection (b), which
provides that “certification shall stay federal proceedings,” Plaintiffs believe the
best reading of the rule is that its requirements relate only to the claim on which
the issue is certified. Any other reading would either prevent certification of
dispositive questions that are not the sole question in the litigation, or stall federal
litigation whenever there is certification on a question relevant to only one claim.
Here, there is no plausible argument that certification on severability will control
the outcome of the entire case. Therefore, certification is clearly impermissible
unless Plaintiffs can proceed on their other claims if the case is certified.
Finally, L.R. 83.40(a)(3) permits certification only if it “will not cause undue
delay or prejudice.” Defendants have failed to comply for more than three years
with a binding Sixth Circuit decision, and have failed to take any curative action to
comply with this Court’s declaratory ruling. ECF 55. Yet now they ask this Court
to allow the unconstitutional punishment of tens of thousands of people to continue
for however long certification takes. Another year could easily pass before (a) this
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Court rules on certification, (b) the statement required by L.R. 83.40(c) is negotiated and approved, (c) the parties brief the issue and the Michigan Supreme Court
decides whether to accept the certified question, Mich. Ct. R. 7.308(A)(2) if the
Michigan Supreme Court does accept certification, it decides the question and
issues a merits opinion. Without doubt certification severely prejudices Plaintiffs.
Accordingly, certification is not just unnecessary, it is also impermissible.
Defendants raise the specter of inconsistent state and federal results, but severability law in Michigan is clear. Moreover, in the unlikely event that the Michigan
Supreme Court rules differently (assuming it even reaches the question of the 2011
amendments’ severability), this Court can always modify its injunction. Fed. R.
Civ. Proc. 60(b). The Court should therefore grant a permanent injunction.
Because L.R. 83.40 permits certification only in the absence of undue delay
or prejudice, the Court cannot certify absent interim relief. Such relief could be
modeled on the final judgment in Does I. See Pls’ Opening Brf., ECF 62, Pg.ID#
834-35. Alternately, the Court could grant a preliminary rather than a permanent
injunction enjoining application of SORA to the ex post facto subclasses, while
certifying severability. That would ensure that registrants are not prejudiced by
ongoing punishment while the certification process plays out, and would mean
there is zero risk of inconsistent state and federal results.
VI. Defendants Should Be Responsible for Notice.
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The state has a statutory responsibility to inform registrants of their SORA
obligations. M.C.L. § 28.725a. But even after entry of this Court’s declaratory
judgment, ECF 55, the state has continued to inform registrants falsely that they
must comply with SORA as written. See ECF 62-4, 62-5. Pursuant to Fed. R. Civ.
P. 23(c)(2)(A), the Court should (1) order Defendants to notify registrants that
liability has been decided and that parts of SORA cannot be applied retroactively;
(2) order the Michigan State Police to provide notice (because it is in the best position to do so given that it administers the registry and regularly provides information to registrants); and (3) order the parties to present a joint notice, or proposed
separate notices, to the Court for approval. See Hunt v. Imperial Merch. Servs.,
Inc., 560 F.3d 1137, 1143-44 (9th Cir. 2009); Barry v. Lyon, 13-cv-13185, Dkt.
114 (E.D. Mich., March 31, 2015) (state to provide notice to (b)(2) class) (Exh. B).
In addition, pursuant to Rule 65(d)(2), the Court should order Defendants to
provide notice to prosecutors and law enforcement, so that they will be bound by
any injunction. Platinum Sports Ltd. v. Snyder, 715 F.3d 615, 619 (6th Cir. 2013)
(prosecutors are bound by injunctions against the governor); Cady v. Arenac Co.,
574 F.3d 334, 343 (6th Cir. 2009) (prosecutors act as agents of the state); Pusey v.
City of Youngstown, 11 F.3d 652, 657-658 (6th Cir. 1993). Local law enforcement
agencies have responsibility for enforcing SORA, M.C.L. § 28.722(n), and are “in
active concert or participation” with Defendants. Fed. R. Civ. Proc. 65(d)(2)(C).
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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 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. 69 filed 11/12/19 PageID.1074 Page 17 o

Thanks guys. @Someone who cares: I’ll make contact there. Thanks for the link. I have filed for unemployment but it’s still under review. It would not be enough to cover my bills but every little bit helps. I would much rather work.
I’ve been applying on indeed.com but keep running into the issue of background checks and even though it was almost 30 years ago it’s still holding me back. I have applied for positions on Craigslist and even applied for daily gigs. I had one gig for a day that paid well but I need something permanent for peace of mind. I’m not ready to give up yet but it’s getting close.

Update…got an interview tomorrow at noon for a very good company that hasn’t mentioned background checks and working on getting an interview set up for monday. Both places in urgent need of my skills.
Keeping my fingers crossed.

FYI Kent County Michigan knocking on doors right now.
On opening weekend of Deer hunting? Hmmm maybe looking for a bit more?

Hello Everyone,

Well , I heard back from Tim from the ACLU today, it was a short and to the point email. it sounds like it might be close to being over, or it’s just more of the same kicking the can down the street and more waiting and waiting, I would like to get everyone’s thought on it and what they think the email means. Do you think it’s finally coming to and end, or it’s just going to be more sit and wait and wait and kicking the can down the street. Thanks in advance. Here it is people.

Bobby: We will be in court in front of the Judge in February of 2020 as will the State. 

Tim P 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
John Doe#3, et al.,
Plaintiff(s),
v. Case No. 2:16−cv−13137−RHC−DRG
Hon. Robert H. Cleland
Richard Snyder, et al.,
Defendant(s),
NOTICE OF MOTION HEARING
You are hereby notified to appear before District Judge Robert H. Cleland at the United
States District Court, Federal Building, 526 Water Street, Port Huron, Michigan. The following
motion(s) are scheduled for hearing:
Motion − #62
• MOTION HEARING: February 5, 2020 at 02:00 PM
Certificate of Service
I hereby certify that this Notice was electronically filed, and the parties and/or counsel of
record were served.
By: s/L. Wagner
Case Manager
Dated: November 19, 2019