MI: Michigan sex offenders seek individual liability for enforcement of vacated rules

5/30/23 UPDATE: MI: Michigan sex offenders lose appeal to hold state officials liable for registry rules


Source: courthousenews.com 5/3/23

A lower court found state officials immune over their continued enforcement of unconstitutional sex offender registration requirements.

CINCINNATI (CN) — A class of anonymous sex offenders urged the Sixth Circuit on Wednesday to reverse a judgment that granted several state officials immunity.

The class had brought a federal lawsuit in 2021 over a series of amendments to Michigan’s Sex Offenders Registration Act, otherwise known as SORA.

Importantly, the 2006 and 2011 amendments — which prohibited sex offenders from residing, working or loitering within 1,000 feet of a school and imposed onerous in-person reporting requirements — had already been held unconstitutionally vague in two previous lawsuits.

Going after Governor Gretchen Whitmer and Col. Joseph Gaspar, who directs the Michigan State Police, for damages, the class said the officials are liable in their individual capacities for enforcing provisions after court orders had invalidated them. The class also named Governor Rick Snyder as a defendant as well as the former director of the state police, Kriste Etue.

U.S. District Judge Victoria Roberts, a Clinton appointee, dismissed the suit in September 2022, finding that all four were entitled to sovereign immunity.

Roberts agreed with the officials that the state was the “real party in interest” in the lawsuit and emphasized the relief granted in the previous lawsuits was rendered exclusively against the state.

Pushing for a Sixth Circuit reversal, the class argued that its complaint made clear the officials were being sued because of their actions as individuals to allow continued enforcement of the unconstitutional SORA amendments, which prevents the application of sovereign immunity.

“As the Supreme Court stated in Marbury v. Madison,” they wrote in a brief, “‘the very essence of civil liberty certainly consists in the right of every individual to claim protection of the laws, whenever he receives an injury.’

“Nothing changed for plaintiffs after [the initial case] because that case was not a class action and defendants refused to accept that old SORA was constitutionally defective and the defendants in [the second case] were sued in their official capacity for injunctive relief only.”

The officials responded meanwhile with language from the complaint against them, emphasizing for example its claim that “the State of Michigan continued to subject tens of thousands of registrants to retroactive punishments.”

“Artful pleading cannot circumvent the true gravamen of the complaint,” the officials argued in a brief to the appeals court.

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Vacated civil regimes do seem to have a history. I know WI abandoned what it called extended supervision for SOR. WI did it by statute. This has been a swaying argument in 2 of my seven FTR indictments. We can only speculate WHY that reality wasn’t applied to the ” procedural due process claims” in Connecticut DPS. Surely Connecticut people can change the law, but may not be permitted to uphold that which is not law today. When states INTEND to move away from a regime it generally means it was ineffective.

So explain to me again what incentive the states have for paying attention to any ruling the court makes that they do not like? If the court decides that yeah you ignored my orders, but who cares? Then the court becomes as the brits say redundant and there might as well not be a court.

The buck has to stop somewhere as Pres Truman said and it was with him, so why can these at the top who sign laws into action not be held accountable again? Does the buck not stop with them?