Doe v. Kelley

• Decision Date: 28 March 1997
• Docket Number: No. 1:97-CV-203.,1:97-CV-203.
• Citation: 961 F.Supp. 1105
• Parties: John DOE, Richard Roe, and Paul Poe, Plaintiffs, v. Frank J. KELLEY, in his capacity as Attorney General of Michigan, Col. Michael D. Robinson, in his capacity as Director of the Michigan State Police, William Hegarty, in his capacity of Chief of the Grand Rapids, Michigan, Police Department, Walt Sprenger, in his capacity as Chief of the Walker, Michigan, Police Department, Robert W. Smith, in his capacity as Chief of the Sparta, Michigan, Police Department, John Porter, in his capacity as Chief of the Rockford, Michigan, Police Department, Robert Carter, in his capacity as Sheriff of Muskegon County, Marvin Weinrick, in his capacity as Chief of the Cedar Springs, Michigan, Police Department, Gary Rosema, in his capacity as Chief of the Ottawa County Sheriff's Department and James Dougan, in his capacity as Sheriff of Kent County, Michigan, Defendants.
• Court: U.S. District Court — Western District of Michigan

961 F.Supp. 1105

John DOE, Richard Roe, and Paul Poe, Plaintiffs, v. Frank J. KELLEY, in his capacity as Attorney General of Michigan, Col. Michael D. Robinson, in his capacity as Director of the Michigan State Police, William Hegarty, in his capacity of Chief of the Grand Rapids, Michigan, Police Department, Walt Sprenger, in his capacity as Chief of the Walker, Michigan, Police Department, Robert W. Smith, in his capacity as Chief of the Sparta, Michigan, Police Department, John Porter, in his capacity as Chief of the Rockford, Michigan, Police Department, Robert Carter, in his capacity as Sheriff of Muskegon County, Marvin Weinrick, in his capacity as Chief of the Cedar Springs, Michigan, Police Department, Gary Rosema, in his capacity as Chief of the Ottawa County Sheriff's Department and James Dougan, in his capacity as Sheriff of Kent County, Michigan, Defendants.

No. 1:97-CV-203.

United States District Court, W.D. Michigan, Southern Division.

March 28, 1997.

Frank E. Stanley, Frank Stanley, P.C., Grand Rapids, MI, for Plaintiffs.

Margaret A. Nelson, Asst. Atty Gen., Lansing, MI, for Defendants Kelley & Robinson.

G. Douglas Walton, Deputy City Atty., Grand Rapids, MI, for Defendant Hegerty.

Teresa S. Decker, Varnum Riddering Schmidt & Howlett, Grand Rapids, MI, for Defendant Sprenger.

Scott G. Smith, Law, Weathers & Richardson, Grand Rapids, MI, for Defendants Smith & Weinrick.

Joseph A. Fink, Dickinson Wright Moon VanDusen, Lansing, MI, for Defendant Porter.

Stephen C. Corwin, Williams Hughes Corwin & Sininger, L.L.P., Muskegon, MI, for Defendant Carter.

Gregory J. Rappleye, Ottawa County Prosecuting Attorney's Office, Grand Haven, MI, for Defendant Rosema.

OPINION OF THE COURT ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

McKEAGUE, District Judge.

This case presents constitutional challenges to a recent amendment to Michigan's Sex Offenders Registration Act ("Act"), M.C.L. § 28.721 et seq. The Act is Michigan's version of "Megan's Law." Since 1994, every state in the Union has enacted a similar law requiring registration of certain sex offenders. In 1994, seven-year old Megan Kanka was abducted, molested and strangled near her home in New Jersey. The accused perpetrator was a twice-convicted sex offender, who lived in the neighborhood. The Kanka family and others in the neighborhood had been unaware of the accused's prior history. Legislatures have responded quickly in an attempt to offer protection to the public through sex offender registration laws.

The subject amendment will go into effect on April 1, 1997. It provides public accessibility to information about persons convicted of certain sex offenses. Plaintiffs are three unidentified persons who have been convicted of such offenses and have complied with the registration requirements of the Act. If the amendment goes into effect on April 1, 1997, each plaintiff's name and any alias, address, physical description, birth date and sexual offense of which he has been convicted will be available for inspection upon request at the local state police post, local law enforcement agency or sheriff's department having jurisdiction over the zip code area in which the respective plaintiff resides. In a complaint filed on March 19, 1997, plaintiffs ask the Court under 42 U.S.C. § 1983 to declare retroactive application of the "notification provisions" of the amendment unconstitutional on several grounds, and to enjoin the same. Plaintiffs contend the amendment as applied to them, (1) violates the Ex Post Facto Clause, (2) violates the Double Jeopardy Clause, (3) deprives them of liberty or property without due process, (4) violates their rights to privacy, (5) constitutes cruel and unusual punishment, and (6) constitutes an unlawful bill of attainder. Now before the Court are plaintiffs' motions for leave to proceed anonymously and for preliminary injunction. The Court conducted a hearing on the motions on March 27, 1997, and now issues its ruling.

I

Plaintiffs have identified themselves simply as John Doe, Richard Roe and Paul Poe. They seek leave to proceed anonymously because disclosure of their identities in this action will allegedly result in the very harm they are trying to prevent through this action.

There are recognized exceptions to the general requirement of Fed.R.Civ.P. 10(a) that a complaint include the names of all parties. See Rowe v. Burton, 884 F.Supp. 1372, 1385-87 (D.Alaska 1994). In order to determine the appropriateness of such exceptional treatment, the Court is required to inquire into the particular circumstances of the case. James v. Jacobson, 6 F.3d 233, 238 (4th Cir.1993). On the present record, it is impossible to determine whether plaintiffs' interests warrant leave to proceed anonymously. At the hearing, plaintiffs' counsel offered to provide additional personal information pursuant to a suitable protective order. Accordingly, the Court will require counsel for all parties to collaborate in the preparation of a proposed protective order which shall govern use of personal information to be made available to the Court and defendants in support of plaintiffs' motion. The attendant requirements are set forth in the order accompanying this opinion. In the meantime, plaintiffs' motion for leave to proceed anonymously is taken under advisement.

II

Plaintiffs' motion for preliminary injunction is evaluated under standards well-settled in the Sixth Circuit. The matter is committed to the Court's discretion based on consideration of four factors:

(1) the likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm without the grant of extraordinary relief; (3.) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest is advanced by the issuance of the injunction.

Dayton Area Visually Impaired Persons v. Fisher, 70 F.3d 1474, 1480 (6th Cir.1995), quoting Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir.1994). These are factors to be balanced, not prerequisites that must be met. Id. Thus, the degree of likelihood of success required to support the grant of a preliminary injunction depends on the strength of the other factors. Id.

III

The parties agree that assessment of plaintiffs' likelihood of success on the merits of four of their claims — the ex post facto, double jeopardy, cruel and unusual punishment, and bill of attainder theories — essentially devolves into a determination of one question: whether retroactive application of the notification provisions constitutes "punishment." In the criminal justice context, punishment, generally, is the deliberate imposition, by some agency of the state, of some measure intended to chastise, deter or discipline an offender. Wilson v. Seiter, 501 U.S. 294, 300, 111 S.Ct. 2321, 2325, 115 L.Ed.2d 271 (1991). However, no universal test for determining whether state action constitutes punishment applies to all of these four constitutional theories. See United States v. Ursery, ___ U.S. ___, ___ - ___, 116 S.Ct. 2135, 2144-49, 135 L.Ed.2d 549 (1996). Yet, for purposes of the present motion, the parties agree, it is appropriate to employ the analytical approach set forth in Doe v. Pataki, 940 F.Supp. 603 (S.D.N.Y. 1996). That is, determining whether government action is punishment requires consideration of the totality of circumstances, and particularly (1) legislative intent, (2) design of the legislation, (3) historical treatment of analogous measures, and (4) effects of the legislation. Id. at 620; see also W.P. v. Poritz, 931 F.Supp. 1199, 1209 (D.N.J.1996) (employing similar approach).

A. Legislative Intent

In contrast with other cases dealing with retroactive application of similar sex offender notification schemes in other states, the present record is devoid of evidence of legislative intent. See e.g., Doe v. Weld, 954 F.Supp. 425, 429 (D.Mass.1996); Doe v. Pataki, 940 F.Supp. at 621-23; W.P. v. Poritz, 931 F.Supp. at 1213. While these courts generally acknowledge that the official purpose of such notification provisions is regulatory or remedial — allowing public access to information so as to better enable prevention of and protection from future predatory offenses — in Doe v. Pataki, the New York Assembly debate minutes were deemed strong evidence of punitive intent. Here, on the other hand, based on the present record, what can be known of the Michigan Legislature's intent must be discerned from the design of the amendment.

B. Design

The subject amendment of the Michigan Sex' Offenders Registration Act requires the Department of State Police ("department") to maintain a computerized data base consisting of a compilation of individuals registered under the Act. M.C.L. § 28.728. Individuals required to be registered are individuals domiciled or temporarily residing in Michigan who have been convicted of any of the "listed offenses" since October 1, 1995, and are incarcerated or on probation or parole for such offense; or were so convicted prior to October 1, 1995, but were incarcerated or on probation or parole for such offense on October 1, 1995. The listed offenses:

— accosting, enticing or soliciting a child for immoral purposes, M.C.L. § 750.145a;

— accosting, enticing or soliciting a child for immoral purposes, second offense, M.C.L. § 750.145b;

— child pornography production, distribution, promotion and possession offenses, M.C.L. § 750.145c;

— disorderly person (indecent or obscene conduct in public place), third or subsequent violation, M.C.L. § 750.167(1)(f);¹

— indecent exposure, third or subsequent violation, M.C.L. § 750.335a; — third or subsequent violation of a corresponding local ordinance prohibiting indecent exposure or indecent or obscene conduct in a public place;

— pandering (enticing female to become prostitute), M.C.L. § 750.455;

— first degree criminal...