Fullmer v. Michigan Dept. of State Police

• Decision Date: 03 June 2002
• Docket Number: No. 01-73319.,01-73319.
• Citation: 207 F.Supp.2d 650
• Parties: Daniel FULLMER, Plaintiff, v. MICHIGAN DEPARTMENT OF STATE POLICE and Lt. Col. Stephen Madden, in his Official capacity as director. Defendants.
• Court: U.S. District Court — Eastern District of Michigan

207 F.Supp.2d 650

Daniel FULLMER, Plaintiff, v. MICHIGAN DEPARTMENT OF STATE POLICE and Lt. Col. Stephen Madden, in his Official capacity as director. Defendants.

No. 01-73319.

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

June 3, 2002.

Thomas Lazar, Bingham Farms, MI, for plaintiff.

Margaret A. Nelson, Mich. Dept. of Atty. Gene., Lansing, MI, for defendants.

OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

ROBERTS, District Judge.

I. INTRODUCTION

This matter is before the Court on the latest challenge to the Michigan Sex Offenders Registration Act, MCLA § 28.721 et seq, ("SORA"). Plaintiff, an individual convicted of an offense that requires registration as a "sexual offender" pursuant to the SORA, argues that the statute violates constitutionally protected procedural due process.

Defendants are the Michigan State Police, the government entity charged with maintaining the registry, and Colonel Michael D. Robinson (the "Director"), in his official capacity as Director of the department.¹ Defendants contend that Plaintiff's liberty interests are not implicated by the required registration and the public dissemination of registry information; therefore, no procedural due process safeguards are mandated. Further, Defendants assert that the issues raised by Plaintiff have all been considered and decided by other courts in this district and circuit, or that the outcome can reasonably be predicted against him based on these prior rulings.

While these prior decisions have upheld the notification provisions of the SORA against due process challenges, none addressed the specific argument made by Plaintiff here: namely, that the reputation damage resulting from registration as a sex offender, coupled with the ongoing legal obligations of registration and the attendant criminal penalties for failure to fulfill the obligations of registration, alter the registrant's legal status, and, therefore, the "stigma plus" test is met and his right to be free from government defamation entitles him to the procedural safeguards under the Due Process clause of the Fourteenth Amendment.²

The Court finds that the Plaintiff has sufficiently demonstrated a liberty interest recognized by the United States Constitution which is deserving of minimal due process protection, because of the damage to reputation as a labeled sex offender, coupled with the burden and duty of continuing registration obligations over a course of years. Because the SORA does not provide notice to registrants or an opportunity to be heard, it is struck down as an unconstitutional denial of due process afforded under the Fourteenth Amendment to the United States Constitution.

II. BACKGROUND

In 1994 Congress enacted, and the President signed, the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Pub.L. No. 103-322, 108 Stat. 1796, 2038 (codified at 42 U.S.C. § 14071). The stated objective of the Act was "to assist law enforcement and protect the public from convicted child molesters and violent sex offenders through requirements of registration and appropriate release of registration information." 64 Fed.Reg. 572, 575 (1999). The law conditions the availability of federal Byrne grants upon the creation of state sex offender registration programs. See 42 U.S.C. § 14071(f)(2)(A). It required the registration of persons convicted of offenses listed in the statute, defined as offenses which include "criminal offenses against a victim who is a minor" and "sexually violent offenses." 42 U.S.C. § 14071(a)(1). States were given three years from September 1, 1994, to comply. See 42 U.S.C. § 14071(f)(1).

The original version of the law required that the information compiled by states was to be treated as private, except that:

A. such information could be disclosed to law enforcement agencies for law enforcement purposes;

B. such information could be disclosed to government agencies conducting confidential background checks; and

C. the designated State law enforcement agency and any local law enforcement agency authorized by the State agency could disclose relevant information necessary to protect the public concerning a specific person required to register under the law, except that the identify of a victim of an offense covered by the law could not be released.

See 42 U.S.C. § 14071(d). In 1996, Congress amended the law to provide that registry information may be disclosed for any permissible state law purpose, and that information shall be released when necessary to protect the public. In addition, the reference indicating that the information was considered private was removed. See 42 U.S.C. § 14071(d) (amended 1996).

Michigan adopted its version of "Megan's Law"³ in 1994, Public Act.1994, No. 295, Eff. Oct 1, 1995. The original version of the Act required registration of certain categories of sex offenders and gave law enforcement officials some discretion to conduct community notification. Subsequent amendments of the Act expanded categories of offenders required to register and eliminated restrictions on public access to registration information. In 1999, Public Act 1999, No. 85, Eff. Sept. 1, 1999, was enacted, again expanding the categories of offenses requiring registration. In addition, it required that information on all registrants be made publicly available, including through the internet. The registry does not compile information and classify offenders based on their dangerousness to the community. Rather, all offenders who commit a listed offense are included.⁴ The Act does not provide any means by which individuals required to register can contest the listing of their information in the Registry.

The Registry's information is provided to the public through the Department of State Police Sex Offender Registry website, www.mipsor.state.mi.us. Anyone with internet access can search the database of registered persons either by zip code, or by name. The name, sex, height, weight, race, eye color, date of birth, address, offense, and any known aliases of registered offenders are accessible by either method.

On August 29, 2001, Plaintiff filed a complaint for declaratory and injunctive relief. He requests that the Court declare SORA's registration and public disclosure scheme an unconstitutional deprivation of his rights as guaranteed by the Due Process Clause of the Fourteenth Amendment. On January 16, 2002, Plaintiff filed the motion for summary judgment now under consideration.

III. ANALYSIS

A. The Summary Judgment Standard

Under Fed.R.Civ.P. 56(c), summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir.1995).

B. Eleventh Amendment Immunity

The Defendants maintain that Plaintiff's suit against the Michigan State Police is barred by the Eleventh Amendment, since its immunity from suit has neither been waived nor abrogated. Pennhurst State School & Hosp. v. Halderman, 465 U.S 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997). The Court agrees.

The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any foreign state.

U.S. Const. Amend. XI.

"[I]n the absence of consent, a suit in which the State or one of its departments or agencies is named as a defendant is proscribed by the Eleventh Amendment," Pennhurst, 465 U.S. at 100, 104 S.Ct at 908, "unless Congress has exercised its undoubted power under § 5 of the Fourteenth Amendment to override that immunity." Will v. Michigan Dep't of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 2309-10, 105 L.Ed.2d 45 (1989). This immunity applies without regard to whether the suit is for declaratory, injunctive or monetary relief. See Akella v. Michigan Dep't. of State Police, 67 F.Supp.2d 716, 722 (E.D.Mich.1999), citing Thiokol Corp. v. Department of Treasury, 987 F.2d 376, 381 (6th Cir.1993). Plaintiff did not respond to this argument, and the record here is devoid of evidence that Michigan has consented to this action or that Congress has expressly overridden it. For these reasons, the action against Defendant Michigan Department of State Police is barred by the Eleventh Amendment and is dismissed. See Akella, 67 F.Supp.2d at 722 (dismissing action against Michigan Department of State Police where plaintiff failed to identify any facts that immunity had been either waived or overridden by Congress).

The Director does not argue that this action brought against him in his official capacity, is barred by the Eleventh Amendment. In any event, it is clear that an action such as this for declaratory and injunctive relief can be maintained against him under the doctrine of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). See Akella, 67 F.Supp.2d at 721-724.

C. Procedural Due Process

The question before the Court is whether registration and public disclosure of information under the SORA violate procedural due process. Plaintiff argues that the registration requirement stigmatizes him as a current sex offender; infringes numerous other interests; and, burdens him through a host of obligations over 25 years such that he is deprived of a liberty interest and entitled to due process under the Fourteenth Amendment. Defendant counters that this Court need not reach the due process question because Plaintiff has failed to make a sufficient showing that he has been deprived of a...