MI: ACLU Sues State Officials for the Fourth Time over Unconstitutional Michigan Sex Offender Registration Act

Source: aclumich.org 2/2/22

Civil rights organization says it’s unconstitutional to label people for life without individual review 
DETROIT – Today the American Civil Liberties Union of Michigan (ACLU), on behalf of 10 people who all previously won federal court rulings that Michigan’s Sex Offenders Registration Act (SORA) is unconstitutional, filed a federal class action lawsuit against state officials over the latest version of the law. It is the fourth federal lawsuit the civil rights organization has filed challenging SORA in the past decade. The federal courts and the Michigan Supreme Court have repeatedly ruled that the earlier iteration of SORA was unconstitutional. 

Today’s lawsuit, Does v. Whitmer, or Does III, filed in U.S. District Court, argues that the new SORA statute, which went into effect in 2021, is also unconstitutional. Specifically, SORA fails to provide for individual review or an opportunity for removal, forcing tens of thousands of people, including people who didn’t even commit a sex offense, to be branded as sex offenders and subjected to extensive, and in most cases life-long restrictions, without any consideration of their individual circumstances, which is a violation of their due process and equal protection rights. The 193-page complaint also argues that SORA imposes unconstitutional retroactive punishment, including by retroactively extending the registration terms of thousands of people to life.

Michigan has one of the largest registries in the country; there are approximately 45,000 Michigan registrants, and almost 10,000 more who live out of state.  

“For nearly a decade, we have been fighting to put an end to an ineffective, bloated and unconstitutional registry that not only fails to protect survivors, but in fact makes families and communities less safe,” said Miriam Aukerman, ACLU of Michigan senior staff attorney. “The latest version of SORA is more of the same, and still puts tens of thousands of people on this list automatically without any consideration of their individual circumstances. What we’re asking for is very simple: consider the facts in each case before someone is tarred as a sex offender for life. Dying shouldn’t be the only way a person can get off the registry.” 

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here’s a quick catch-up;

92
Mar 17, 2023
MEMORANDUM re Improper Questioning at Depositions of Named Plaintiffs by All Plaintiffs (Attachments: # 1 Exhibit A: Defendants’ Deposition Exhibit) (Aukerman, Miriam) (Entered: 03/17/2023)
Main Doc

93
Mar 17, 2023
STIPULATED ORDER Permitting Withdrawal of Assistant Attorney General Keith G. Clark. Signed by District Judge Mark A. Goldsmith. (KSan) (Entered: 03/17/2023)
Main Doc
Substitution/Withdrawal of Attorney

94
Mar 17, 2023
NOTICE by Joseph Gasper, Gretchen Whitmer re 90 Order (Attachments: # 1 Exhibit Attachment 1 – Mary Roe – Ex B, Table) (Jamison, Eric) (Entered: 03/17/2023)
Main Doc
Notice – Other

95
Mar 21, 2023
Defendants Whitmer and Gasper’s Lay Witness List WITNESS LIST by Joseph Gasper, Gretchen Whitmer (Jamison, Eric) (Entered: 03/21/2023)
Main Doc

96
Mar 21, 2023
Exhibit List by Joseph Gasper, Gretchen Whitmer. (Jamison, Eric) (Entered: 03/21/2023)
Main Doc

97
Mar 21, 2023
Exhibit List by All Plaintiffs. (Aukerman, Miriam) (Entered: 03/21/2023)
Main Doc

98
Mar 21, 2023
LAY WITNESS LIST by All Plaintiffs (Aukerman, Miriam) (Entered: 03/21/2023)

things are starting to line up,

Court order;

JOHN DOES, et al., Plaintiffs,
vs.
GRETCHEN WHITMER, et al.,
Defendants. __________________________/
Case No. 22-cv-10209
HON. MARK A. GOLDSMITH
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
ORDER REGARDING PLAINTIFFS’ OBJECTIONS TO CERTAIN QUESTIONS ASKED BY DEFENDANTS DURING DEPOSITIONS
Plaintiffs—who bring this suit challenging the constitutionality of Michigan’s Sex Offender Registration Act (SORA)—object to certain questions posed by Defendants to one of the named Plaintiffs, Mary Roe, during Roe’s March 13, 2023 deposition. On March 15, 2023, the Court held a status conference on the record regarding the dispute. The Court entered an order (i) precluding Defendants from pursuing that line of questioning until further order of the Court, and (ii) directing the parties to file memoranda on the issue (Dkt. 90). The parties filed memoranda outlining their positions. See Pl. Mem. (Dkt. 92); Def. Br. (Dkt. 94). The Court sustains in part and overrules in part Plaintiffs’ objections.
Plaintiffs take issue with Defendants asking Roe questions based on multiple descriptions of the criminal histories of certain SORA registrants, which Defendants state they pulled from Westlaw—i.e., from a publicly available source for legal decisions. See Def. Dep. Ex. (Dkt. 92- 1). Plaintiffs raised concerns with two types of questions posed to Roe. First, Defendants asked for Roe’s opinion on whether the individuals featured in these fact patterns were likely to recidivate. Second, Defendants asked whether Roe would want to know the information contained in each description, if the registrant had some interaction or relationship with Roe—e.g., as a
  
Case 2:22-cv-10209-MAG-CI ECF No. 99, PageID.2540 Filed 03/23/23 Page 2 of 3
neighbor, child’s soccer coach, or babysitter. Plaintiffs argue that these lines of questioning (i) are abusive and harassing, (ii) are irrelevant, and (iii) improperly elicit opinion testimony from a non- expert. See Pl. Mem.
The Court agrees with Plaintiffs that Defendants’ questioning on the topic of recidivism is improper. Whether a certain individual is likely to recidivate is a question that calls for the “specialized knowledge” of an expert with adequate “skill, training, or education” under Federal Rule of Evidence 702. Roe is a party to this case and a lay witness, not an expert. Defendants observe that Roe is a licensed therapist, see Def. Br. at 3, but this experience does not make her qualified to opine on recidivism, and Plaintiffs have not presented her testimony for that purpose. Defendants are prohibited from asking unqualified deponents for their opinions on whether individuals convicted of sex offenses will recidivate.
However, the Court will allow Defendants to ask deponents whether they would want to know information about registrants’ histories of sex offenses. The Court is unable to find at this stage of the case that the information requested is beyond the scope of relevant information that is discoverable under Federal Rule of Civil Procedure 26(b)(1). “It is well established that the scope of discovery is ‘  to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.’” Bush v. Dickerson, No. 16-6140, 2017 WL 3122012, at *4 (6th Cir. May 3, 2017) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1).
Plaintiffs argue that SORA violates the Ex Post Facto Clause because its provisions retroactively impose punishment, partly because of the shaming nature of the registry. See Compl. ¶¶ 8, 657–666 (Dkt. 1). The interest of the public in information about registrants may bear on that issue. It is possible that such interest supports the defense’s view of the importance of the
 construed
broadly
  2

Case 2:22-cv-10209-MAG-CI ECF No. 99, PageID.2541 Filed 03/23/23 Page 3 of 3
registration system. It may also support Plaintiffs’ view that the registration system promotes shaming, given that the public interest in learning of such information may impede registrants’ efforts to reintegrate and lead productive lives. At this point in the proceedings, the Court is satisfied that a lay person’s interest in information related to a registrant’s history of sex offenses “bears on” the issues of punishment and shaming, including in the form of non-expert testimony. Bush, 2017 WL 3122012, at *4 (punctuation modified).
Additionally, questions about specific offenses registrable under SORA—in the form so far posed by Defendants—are not so “unreasonably . . . embarrass[ing] or oppress[ive]” as to violate the protections of Federal Rule of Civil Procedure 30(d)(3). Plaintiffs represent that Roe suffers from stress associated with being labeled as a sex offender. See Pl. Mem. at 3. But Roe chose to participate in the present action as a named plaintiff challenging the constitutionality of a sex offender registry scheme affecting the lives of thousands of diverse registrants. She cannot expect to completely avoid exposure to unpleasant facts attendant to sex offense convictions. Nor does the Court find valid Plaintiffs’ argument that this line of questioning “suggests that [Roe’s prior] conduct is equal to that of people who committed these most serious crimes.” Id. at 2. Nothing in the questioning suggests such equivalence. The type of questioning employed by Defendants may become impermissibly oppressive if it is posed for an excessive length of time or if it covers an exorbitant number of sample cases. However, on the facts presented to this Court, Defendants have not crossed that line yet.
For the above reasons, the Court sustains in part and overrules in part Plaintiffs’ objections. SO ORDERED.
Dated: March 23, 2023 Detroit, Michigan
s/Mark A. Goldsmith MARK A. GOLDSMITH United States District Judge

I believe this is still in our favor, so far,,,,,
the court seems to be taking a no nonsense approach to any deviation from the previous Does cases …

More to come;
100 Mar 29, 2023 Main Doc Motion – Free
101 Mar 29, 2023 Main Doc Certify

Today’s update;

Filed
Description
103
Apr 5, 2023
Main Doc
Response to Motion

102

Apr 2, 2023
Main Doc
appearance

what I’ve read about Tennessee ex post facto, involving doe ruling is very encouraging! Good judge!

Then Tennessee lawmakers trashed the ALI recommendations!

bad lawmakers,,,,,,

Today’s update;

104
Apr 7, 2023
Main Doc
Reply to Response to Motion

maybe after a couple more of these, we will see a positive move,,,

Today’s update;
105 Apr 11, 2023 Main Doc ~Util – Set Scheduling Order Deadlines AND Stipulation and Order
well we might get a date penciled In before long,,,

More;
106 Apr 12, 2023 Main Doc, Hearing on Motion*

Might as well add this to the pile;

fill in the blank MOTION FOR RELIEF FROM JUDGMENT

PFR , betts vs. them,,,
this came in the mail today.

The motion was granted, as far as granting the new subclass. The doc is free on pacer.

Reference: doc 107 Apr 19

Just my take, but this is good news.

Todays movement;

107
Apr 19, 2023
Main Doc
Order on Motion – Free

yesterday’s update;
108 Apr 21, 2023 Main Doc – Civil Case – Complaint, Amended
just trying to help,,,,

Doc 109, is the “STIPULATED ORDER TO CERTIFY NON-MICHIGAN OFFENSE SUBCLASS”.

“1. The Court certifies a “non-Michigan offense” subclass, defined as members of the primary class who are or will be subject to sex offender registration under Mich. Comp. Laws 28.722(r)(x); (t)(xiii); (v)(viii); or 28.723(1)(d), for a conviction or adjudication from a jurisdiction other than Michigan.”

Doc 110, is just an extension. It gives the state until May 19th to answer the amended/modified complaint.

I’m probably the last person to come across this, but I haven’t read about it anywhere else yet,,,,,

16 Crucial Words That Went Missing From a Landmark Civil Rights Law
from the New York Times ,,,
if it’s blocked.

lying, cheating, thieves in suits,

Today: state response: 111 May 19, 2023 Main Doc Answer to Amended Complaint
Step by step, we will prevail.

Both sides are putting together their play lists,

Date Filed
Description
115
Jun 16, 2023
Amended WITNESS LIST by All Plaintiffs (Aukerman, Miriam) (Entered: 06/16/2023)
Main Doc

114

Jun 16, 2023
Exhibit List by All Plaintiffs. (Aukerman, Miriam) (Entered: 06/16/2023)
Main Doc

113

Jun 16, 2023
Exhibit List by Joseph Gasper, Gretchen Whitmer. (Jamison, Eric) (Entered: 06/16/2023)
Main Doc

112

May 26, 2023
STIPULATION AND ORDER to Extend Deadline for Class Data Report and Status Conference ( TELEPHONIC Status Conference RESET for 7/13/2023 04:00 PM before District Judge Mark A. Goldsmith). Signed by District Judge Mark A. Goldsmith. (KSan) (Entered: 05/26/2023)
Main Doc
Stipulation and Order AND ~Util – Set Deadlines/Hearings

I’ll wait and see if this gets posted, my last ones were not,,,,

Paperwork is starting to lineup;
119 Jul 7, 2023 Main Doc Appear*
117 Jun 28, 2023 Main Doc Stipulation and Order

⚡⚡ Long Over Due ! ⚡⚡ Hoping this Judge will see the light and strike down the retroactive application of Sorna. It is punitive and unconstitutional yet they still retroactively applied it to thousands of citizens and their families, they have been told this by the State of Michigan Supreme Court and the Federal Courts its time they are forced to comply with the rulings. I guess they think they are above the law lol they are making a mockery of the Courts. Violating thousands of peoples lives on and off the registry. Not Acceptable anymore Michigan. I hope that one day monetary damages are awarded to those who have been violated for years upon years. In many cases after a sentence has been served.

anyome hear of anything new?

Hello everyone, Just wondering if anyone has heard anything on how the case is going. I know it takes time and the wheels of justice are slow. Just curious if anyone has heard anything new as of late. Thanks for everyones time.

Any updates?

I would advise you not to file anything at this time, and so would the ACLU because it could potentially hinder our current class action litigation. Besides that, a judge would most likely put your case on hold pending the outcome of Does III, so you would just be wasting your filing fee and time.

@Doe,
might I ask what state you are in,
the answer you seek will depend on which state.

Hello everyone, I know this is a long shot, but has anyone heard anything on how the case is progressing if it is progressing at all. Haven’t heard anything or gotten any update emails from Tim. @Dr is the only one I’ve noticed giving us any updates. It’s just my opinion obviously, but since we’ve won 3 times already , it shouldn’t take this long to win this case. Exspecially since there have been important cars in other States that we have won as well. This case should be a no brainer.

This morning’s update is over a month old but just posted?

Jul 13, 2023
Minute Entry for virtual proceedings before District Judge Mark A. Goldsmith: Status Conference held on 7/13/2023 (Court Reporter: None Present, Not on the Record) (KSan)

119

Jul 7, 2023
NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set for 7/13/2023 04:00 PM before District Judge Mark A. Goldsmith (KSan) (Entered: 07/07/2023)
Main Doc
Appear*

118

Jul 6, 2023
JOINT STATUS REPORT by All Plaintiffs (Aukerman, Miriam) (Entered: 07/06/2023)
Main Doc

I just caught this, not sure what the order is about;

121
Sep 1, 2023
Main Doc
Order

?