Doe v. Snyder

• Decision Date: 25 August 2016
• Docket Number: Nos. 15-1536/2346/2486,s. 15-1536/2346/2486
• Citation: 834 F.3d 696
• Parties: John Does #1-5; Mary Doe, Plaintiffs–Appellees (15-1536), Plaintiffs–Appellants/Cross–Appellees (15-2346 & 15-2486), v. Richard Snyder, Governor of the State of Michigan, in his official capacity; Kriste Etue, Director of the Michigan State Police, in her official capacity, Defendants–Appellants (15-1536), Defendants–Appellees/Cross–Appellants (15-2346 & 15-2486).
• Court: U.S. Court of Appeals — Sixth Circuit

834 F.3d 696

John Does #1-5; Mary Doe, Plaintiffs–Appellees (15-1536), Plaintiffs–Appellants/Cross–Appellees (15-2346 & 15-2486),

v.Richard Snyder, Governor of the State of Michigan, in his official capacity; Kriste Etue, Director of the Michigan State Police, in her official capacity, Defendants–Appellants (15-1536), Defendants–Appellees/Cross–Appellants (15-2346 & 15-2486).

Nos. 15-1536/2346/2486

United States Court of Appeals, Sixth Circuit.

Argued: January 27, 2016

Decided and Filed: August 25, 2016

Rehearing Denied September 15, 2016

ARGUED: Erik A. Grill, Office of the Michigan Attorney General, Lansing, Michigan, for Appellants in 15-1536 and for Appellees/Cross–Appellants in 15-2346 and 15-2486. Miriam J. Aukerman, American Civil Liberties Union Fund of Michigan, Grand Rapids, Michigan, for Appellees in 15-1536 and for Appellants/Cross–Appellees in 15-2346 and 15-2486. ON BRIEF: Erik A. Grill, Office of the Michigan Attorney General, Lansing, Michigan, for Appellants in 15-1536 and for Appellees/Cross–Appellants in 15-2346 and 15-2486. Miriam J. Aukerman, American Civil Liberties Union Fund of Michigan, Grand Rapids, Michigan, Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Detroit, Michigan, Paul D. Reingold, Michigan Clinical Law Program, Ann Arbor, Michigan, William W. Swor, Detroit, Michigan, for Appellees in 15-1536 and for Appellants/Cross–Appellees in 15-2346 and 15-2486. Christian J. Grostic, Kushner & Hamed Co., LPA, Cleveland, Ohio, Candace C. Crouse, Pinales Stachler Young Burrell & Crouse Co., LPA, Cincinnati, Ohio for Amicus Curiae in 15-1536. Liisa R. Speaker, Speaker Law Firm PLLC, Lansing, Michigan, Sonja B. Starr, University of Michigan Law School, Ann Arbor, Michigan, Douglas Mullkoff, Kessler, Mullkoff & Hooberman LLP, Ann Arbor, Michigan, Craig Jaquith, Ohio Public Defender, Columbus, Ohio, N.C. Deday Larene, Larene & Kriger, P.L.C., Detroit, Michigan, Jennifer M. Kinsley, Northern Kentucky University, Highland Heights, Kentucky, for Amici Curiae in 15-2346 and 15-2486.

Before: MERRITT, BATCHELDER, and DONALD, Circuit Judges.

OPINION

ALICE M. BATCHELDER

, Circuit Judge.

Like many states, Michigan has amended its Sex Offender Registration Act (SORA) on a number of occasions in recent years for the professed purpose of making Michigan communities safer and aiding law enforcement in the task of bringing recidivists to justice. Thus, what began in 1994 as a non-public registry maintained solely for law enforcement use, see Mich. Pub. Act 295, § 10 (1994), has grown into a byzantine code governing in minute detail the lives of the state's sex offenders, see Mich. Comp. Laws § 28.723, et seq.

Over the first decade or so of SORA's existence, most of the changes centered on the role played by the registry itself. In 1999, for example, the legislature added the requirement that sex offenders register in person (either quarterly or annually, depending on the offense) and made the registry available online, providing the public with a list of all registered sex offenders' names, addresses, biometric data, and, since 2004, photographs. See Mich. Pub. Act. 85 §§ 5a(4), 8(2), 10(2)(3) (1999); Mich. Pub. Acts 237, 238 (2004). Michigan began taking a more aggressive tack in 2006, however, when it amended SORA to prohibit registrants (with a few exceptions, see Mich. Comp. Laws § 28.734

–36) from living, working, or “loitering”¹ within 1,000 feet of a school. See Mich. Pub. Acts 121, 127 (2005). In 2011, the legislature added the requirement that registrants be divided into three tiers, which ostensibly correlate to current dangerousness, but which are based, not on individual assessments, but solely on the crime of conviction. See Mich. Pub. Acts 17, 18 (2011). The 2011 amendments also require all registrants to appear in person “immediately” to update information such as new vehicles or “internet identifiers” (e.g. , a new email account). See id. The 2006 and 2011 amendments apply retroactively to all who were required to register under SORA. See Mich. Pub. Act 46 (2006); Mich. Pub. Acts 17, 18 (2011). Violations carry heavy criminal penalties. See Mich. Comp. Laws § 28.729.

The Plaintiffs in this case—identified here only as five “John Does” and one “Mary Doe”—are registered “Tier III” sex offenders currently residing in Michigan. It is undisputed on appeal that SORA's 2006 and 2011 amendments apply to them retroactively. That law has had a significant impact on each of them that reaches far beyond the stigma of simply being identified as a sex offender on a public registry. As a result of the school zone restrictions, for example, many of the Plaintiffs have had trouble finding a home in which they can legally live or a job where they can legally work. These restrictions have also kept those Plaintiffs who have children (or grandchildren) from watching them participate in school plays or on school sports teams, and they have kept Plaintiffs from visiting public playgrounds with their children for fear of “loitering.” Plaintiffs are also subject to the frequent inconvenience of reporting to law enforcement in person whenever they change residences, change employment, enroll (or un-enroll) as a student, change their name, register a new email address or other “internet identifier,” wish to travel for more than seven days, or buy or begin to use a vehicle (or cease to own or use a vehicle). See Mich. Comp. Laws §§ 28.722(g)

, 725(1).

Plaintiffs sued Michigan Governor Richard Snyder and Colonel Kriste Etue, the director Michigan's state police (collectively, “Michigan”), challenging SORA's validity on a number of different grounds, including that portions of SORA are unconstitutionally vague, that its requirements should not be construed as creating strict liability offenses, that SORA violates the right to free speech guaranteed by the First Amendment, and that it violates the Fourteenth Amendment by imposing oppressive restrictions on Plaintiffs' ability to parent, work, and travel. Plaintiffs also contended that SORA's retroactive application to them—specifically, the retroactive application of the amendments that went into effect starting in 2006 or later—amounts to an Ex Post Facto punishment prohibited by the Constitution. See U.S. Const. art. I, § 10, cl. 1

.

In a handful of opinions, including an opinion following from a Rule 52 bench trial, the district court concluded, among other things, that SORA was not an Ex Post Facto law and that most of its provisions did not violate the Constitution's guarantee of due process. It did conclude, however, that Plaintiffs were correct that some of SORA's provisions were unconstitutionally vague, that those who are required to register under that law cannot be held strictly liable for violating its requirements, and that its retroactive requirement that sex offenders register on-line aliases for life violated the First Amendment. Both sides filed timely appeals, which we have consolidated.

We begin our analysis with the Ex Post Facto issue. As is the case with many of the Constitution's guarantees—“due process of law,” “the freedom of speech,” “the right of the people to keep and bear arms”—the Ex Post Facto clause leaves unanswered foundational questions about the guarantee's scope and means of enforcement. The document itself provides simply that “No State shall ... pass any ... ex post facto Law.” U.S. Const. art. I § 10, cl. 1

. As with the other guarantees, it is the courts that have done most of the work in expounding the legal meaning of this provision—indeed, the Ex Post Facto clause was one of the first, if not the first, such constitutional question to be exposited by the Supreme Court, when it issued its 1798 decision in Calder v. Bull , 3 U.S. 386, 3 Dall. 386, 1 L.Ed. 648 (1798). That case, consistent with what scholars have identified as the majority position at the time of the founding, held that the Constitution's ban on Ex Post Facto laws does not bar all retroactive lawmaking, but only retroactive punishment, a codification of what many in the founding generation believed to be a self-evident truth: e poena sine lege , no punishment without a law. See

Calder , 3 U.S. at 388 (Opinion of Chase, J.) (explaining the Court's holding that the Ex Post Facto clause prohibits only retroactive punishment and opining that such punishment was so “contrary to the great first principles of the social compact [that it could not] be considered a rightful exercise of legislative authority” even if there were no provision in the Constitution prohibiting it); see also David F. Forte, Ex Post Facto , in The Heritage Guide to the Constitution , 203, 203–04 (David F. Forte & Matthew Spalding, eds. 2d ed. 2014).

This understanding has kept courts from interfering with state sovereignty in many cases, but it has also provided a powerful check on states when they have sought to punish socially disfavored persons without prior notice. As Chief Justice John Marshall explained in Fletcher v. Peck

:

Whatever respect might have been felt for the state sovereignties, it is not to be disguised that the framers of the constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment; and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed.

10 U.S. 87, 137–38, 6 Cranch 87, 3 L.Ed. 162 (1810)

. The guarantee is, as James Madison put it, a “constitutional bulwark in favour of personal security and private rights.” The Federalist No. 44 , at 232 (James Madison) (The Gideon ed., George W. Carey & James McClellan eds., Liberty Fund 2001). As these quotations suggest, moreover, the distinction between civil regulation and criminal punishment has never been woodenly applied. “[I]t is the effect, not the form, of the law that determines whether it is ex post...