By Ben Solis
Gongwer News Service
Sex offender registrants that are subject to certain provisions that were not adopted at the time they committed their crimes violates the U.S. Constitution’s ex post facto law protections, a federal judge ruled in a class action lawsuit challenging the validity of Michigan’s Sex Offender Registration Act.
In a 115-page order, U.S. District Judge Mark Goldsmith of the Eastern District of Michigan also ruled that those who have committed a crime without a sexual element be deemed as sex offenders or subject to registration.
The opinion came in Does v. Whitmer (USEDM Docket No. 22-10209), a class action lawsuit alleging that the 2021 amendments made to SORA violate ex post facto, due process, equal protection, privileges and immunities, and First Amendment protections.
Goldsmith said he was granting in part and denying in part dueling motions for summary judgment filed by the parties.
Although the court struck down portions of the amended law, Goldsmith said he rejected claims that all sex offenders are entitled to an individualized hearing, either before being placed on the registry or periodically afterward to determine if they are or remain a danger to society.
“A right to a hearing will be recognized – beyond the limited circumstances currently allowed under the statute – for individuals who have been convicted of an offense without a sexual element that the state claims is a registrable offense based on a sexual circumstance,” Goldsmith wrote. “A right to a hearing will also be recognized where a non-Michigan offense triggers registration in Michigan based on the offense being substantially similar to a registerable Michigan offense.”
Regarding the plaintiffs’ First Amendment challenges, Goldsmith wrote that some of the 2021 SORA’s requirements violate free-speech rights, although others do not.
A challenge regarding plea bargains was found moot, but a challenge raised on various terms in the statute being vague would require additional proceedings before his court, Goldsmith added.
Goldsmith said the parties agreed that the 2021 amendment to the law carried over a bulk of the reporting requirements introduced in a 2011 version of the law that was ruled unconstitutional.
Registrants are still required to report changes in the personal information given to law enforcement within three business days, although the requirement to report internet identifiers no longer applied to pre-2011 registrants, for example.
The new version of SORA allows for, but does not require, the Department of State Police to establish a method – other than in-person reporting for certain updaters – to keep up with reporting.
Only changes in travel plans, vehicle info, internet ID and phone numbers can be reported by mail.
The plaintiffs had argued that the 2021 law made minimal changes to the structure, substance and overall requirements of registration, and that the changes the Legislature did make were more complex, vaguer and harder to understand the version that preceded it, according to the initial complaint filed in 2022.
The new law also retained the identical tier system, with identical lengthy registration periods and onerous reporting requirements that do not include individualized risk assessments. The plaintiffs argued that, too, was unconstitutional.
The opinion notes there were multiple pieces of litigation regarding SORA, but recent Michigan Supreme Court decisions changed the course of jurisprudence on the law. People v. Betts saw the court hold that the 2011 SORA applied to those whose acts predated the amendments then violated the Constitution. People v. Lymon, decided in the most recent high court term, also found that the 2021 rewrite of SORA violates the state Constitution’s protections against cruel and unusual punishment as it relates to non-sexual offenders.
That set the stage for the ruling in the present case, Goldsmith said, and awarded summary judgment to the plaintiffs on two grounds: that retroactive application of the 2021 SORA to those charged under the 2011 law, and those retroactively subjected to a lifetime registration requirement, had their constitutional rights violated.
As to the matter requiring further proceedings, the court ordered the parties to meet and confer before October 18 to decide what kind of further proceedings are required, the statutory terms that the parties can agree to be narrowed to avoid vagueness and terms they do not agree upon, and whether additional briefing is necessary on Governor Gretchen Whitmer’s status as a defendant in the lawsuit.
Gongwer News Service
Sex offender registrants that are subject to certain provisions that were not adopted at the time they committed their crimes violates the U.S. Constitution’s ex post facto law protections, a federal judge ruled in a class action lawsuit challenging the validity of Michigan’s Sex Offender Registration Act.
In a 115-page order, U.S. District Judge Mark Goldsmith of the Eastern District of Michigan also ruled that those who have committed a crime without a sexual element be deemed as sex offenders or subject to registration.
The opinion came in Does v. Whitmer (USEDM Docket No. 22-10209), a class action lawsuit alleging that the 2021 amendments made to SORA violate ex post facto, due process, equal protection, privileges and immunities, and First Amendment protections.
Goldsmith said he was granting in part and denying in part dueling motions for summary judgment filed by the parties.
Although the court struck down portions of the amended law, Goldsmith said he rejected claims that all sex offenders are entitled to an individualized hearing, either before being placed on the registry or periodically afterward to determine if they are or remain a danger to society.
“A right to a hearing will be recognized – beyond the limited circumstances currently allowed under the statute – for individuals who have been convicted of an offense without a sexual element that the state claims is a registrable offense based on a sexual circumstance,” Goldsmith wrote. “A right to a hearing will also be recognized where a non-Michigan offense triggers registration in Michigan based on the offense being substantially similar to a registerable Michigan offense.”
Regarding the plaintiffs’ First Amendment challenges, Goldsmith wrote that some of the 2021 SORA’s requirements violate free-speech rights, although others do not.
A challenge regarding plea bargains was found moot, but a challenge raised on various terms in the statute being vague would require additional proceedings before his court, Goldsmith added.
Goldsmith said the parties agreed that the 2021 amendment to the law carried over a bulk of the reporting requirements introduced in a 2011 version of the law that was ruled unconstitutional.
Registrants are still required to report changes in the personal information given to law enforcement within three business days, although the requirement to report internet identifiers no longer applied to pre-2011 registrants, for example.
The new version of SORA allows for, but does not require, the Department of State Police to establish a method – other than in-person reporting for certain updaters – to keep up with reporting.
Only changes in travel plans, vehicle info, internet ID and phone numbers can be reported by mail.
The plaintiffs had argued that the 2021 law made minimal changes to the structure, substance and overall requirements of registration, and that the changes the Legislature did make were more complex, vaguer and harder to understand the version that preceded it, according to the initial complaint filed in 2022.
The new law also retained the identical tier system, with identical lengthy registration periods and onerous reporting requirements that do not include individualized risk assessments. The plaintiffs argued that, too, was unconstitutional.
The opinion notes there were multiple pieces of litigation regarding SORA, but recent Michigan Supreme Court decisions changed the course of jurisprudence on the law. People v. Betts saw the court hold that the 2011 SORA applied to those whose acts predated the amendments then violated the Constitution. People v. Lymon, decided in the most recent high court term, also found that the 2021 rewrite of SORA violates the state Constitution’s protections against cruel and unusual punishment as it relates to non-sexual offenders.
That set the stage for the ruling in the present case, Goldsmith said, and awarded summary judgment to the plaintiffs on two grounds: that retroactive application of the 2021 SORA to those charged under the 2011 law, and those retroactively subjected to a lifetime registration requirement, had their constitutional rights violated.
As to the matter requiring further proceedings, the court ordered the parties to meet and confer before October 18 to decide what kind of further proceedings are required, the statutory terms that the parties can agree to be narrowed to avoid vagueness and terms they do not agree upon, and whether additional briefing is necessary on Governor Gretchen Whitmer’s status as a defendant in the lawsuit.
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