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

This was filed yesterday..seems pretty solid.

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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

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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
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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
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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
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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

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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)
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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
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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.
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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.
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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.
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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).
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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
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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
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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.
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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).
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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.
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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.
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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
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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).
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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
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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.
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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
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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
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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.
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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
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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
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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
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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.
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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.
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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
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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.
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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: December 23, 2019
s/ Miriam J. Aukerman (P63165)
American Civ

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

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 .

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 

So long story short. What are the thoughts in the outcome here?

Thanks Bobby for posting our response. If it’s possible I’m sure everyone would be interested to read the states brief. Some things are going to change,,,, the good lord only knows what,,,, but there will be changes.
Good luck to everyone involved with the hearing on the 5th!!!!!