McClellan v. Cnty. of Chippewa
| Decision Date | 07 October 2022 |
| Docket Number | 2:21-cv-246 |
| Parties | KENNETH MCCLELLAN, Plaintiff, v. COUNTY OF CHIPPEWA, et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Plaintiff Kenneth McClellan initiated this case against Defendants Chippewa County, Jeffrey Erickson, Jessica Beckner, Andrea Johnston, Bruce Garchow, Watch Systems, LLC, and Charles Malette, seeking to recover damages stemming from his arrest and prosecution for violation of Michigan's Sex Offender Registration Act (“SORA”). Pending before the Court are five motions to dismiss Plaintiff's Complaint separately filed by Defendants as follows: Defendants Bruce Garchow and Andrea Johnston (“MDOC Defendants”) (ECF No. 23); Chippewa County and Jeffrey Erickson (“County Defendants”) (ECF No. 24); Jessica Beckner (ECF No. 28); and Defendant Watch Systems, LLC (First Mot. to Dismiss, ECF No. 30; Second Mot. to Dismiss, ECF No 40). Plaintiff filed a response in opposition to each motion and Defendants have filed replies. For the reasons that follow, the Court will dismiss Plaintiff's federal claims and decline to exercise supplemental jurisdiction over Plaintiff's state law claims.
Also pending before the Court is Plaintiff's motion for leave to file an amended complaint (ECF No. 46). The Court ordered Defendants to respond to that motion on an expedited basis and most Defendants have done so.[1] As discussed below, the Court will deny Plaintiff's motion for leave to amend.
This action arises from Plaintiff's November 2017 arrest and subsequent conviction in Michigan state court for failing to comply with the SORA. Plaintiff was arrested in November 2017 for allegedly failing to report Twitter and Facebook accounts. (Compl. ¶ 54, ECF No. 1.) He was then convicted of failing to report the Facebook account under Mich. Comp. Laws § 28.725(1)(f) (2011), which required individuals on the sex offender registry to “report in person and notify the registering authority . . . immediately after . . . establish[ing] any electronic mail or instant message address, or any other designations used in Internet communications or postings.” Id.; see People v. McClellan, No. 346885, slip op. at 2-3 (Mich. Ct. App. Apr. 9, 2020) (examining Plaintiff's conviction under Mich. Comp. Laws § 28.725(1)(f)).[2] This conviction caused Plaintiff to be incarcerated for nearly 28 months with the Michigan Department of Corrections (“MDOC”). (Compl. ¶ 2.) Plaintiff claims that Defendants “caused [him] to be convicted of a crime that, at the time of the conviction, did not exist as applied to him by virtue of a change in Michigan's sex offender registration law.” (Id.)
Plaintiff Kenneth McClellan is a resident of Sault Ste Marie, Chippewa County, Michigan. (Id. ¶ 11.) Plaintiff alleges that Defendant Chippewa County maintains and operates a Sheriff's Department, and “establishes, promulgates, and implements the policies of the Chippewa County Sheriff's Department with regard to its operations, as well as its hiring, training, supervision, and discipline” of the Department's employees. (Id. ¶ 12.) Defendant Erickson was employed by the Chippewa County Sheriff's Department. (Id. ¶¶ 13-14, 54.) Defendant Beckner was employed by the Michigan State Police (“MSP”). (Id. ¶ 16.) Defendants Garchow and Johnston were employed as probation agents for the MDOC in Chippewa County. (Id. ¶ 19.)[3] Defendant Watch Systems is a private technology vendor corporation that contracted with the MSP “to accurately provide and maintain [sex offender registration] database software.” (Id. ¶¶ 5, 22.) Defendant Malette was Plaintiff's criminal defense attorney. (Id. ¶ 24.)
In 1992, Plaintiff was accused of third degree criminal sexual conduct (“CSC”), in violation of Mich. Comp. Laws § 750.520(d)(1)(a). (Compl. ¶ 27.) Four years later, in 1996, Plaintiff “entered a plea of nolo contendere” in Oakland County. (Id.) Plaintiff's plea resulted in his “inclusion on a non-public registry maintained solely for use by law enforcement,” and required him to “submit his address twice a year” for 25 years. (Id. ¶¶ 28, 31 (citing Mich. Pub. Acts 295, § 10 (1994).)
The SORA was enacted in 1994. In 1999, the Michigan Legislature introduced a series of amendments to the SORA, including increased offender restrictions and registration requirements. See Mich. Pub. Act. 85 §§ 5a(4), 8(2), 10(2)(3) (1999). In 2006, the SORA was amended to prohibit registrants from living, working, or loitering within 1,000 feet of school property-an area referred to as Student Safety Zones. See Mich. Pub. Acts 121, 127 (2005).
The SORA was amended again in 2011 to divide registrants into three tiers based on the crime of conviction. Mich. Pub. Acts 17, 18 (2011). Following the 2011 amendments, Plaintiff was designated as a Tier III offender and required to register for life. These amendments also included the requirement in Mich. Comp. Laws § 28.725(1)(f) that Plaintiff immediately report new internet identifiers. The 2011 version of the SORA applied retroactively to Plaintiff, even though he committed his CSC offense before 2011.
After 2011, there were a number of challenges to the 2006 and 2011 amendments. Some of the challengers contended that applying those amendments to those who committed sex offenses before the amendments took effect was a violation of the ex post facto prohibitions of the U.S. and Michigan constitutions. The Michigan Court of Appeals rejected those claims on several occasions, concluding that the registration and reporting requirements in the SORA were not punishment.[4] See, e.g., People v. Snyder, No. 325449, 2016 WL 683206, at *3 (Mich. Ct. App. Feb. 18, 2016); People v. Tucker, 879 N.W.2d 906, 926 (Mich. Ct. App. 2015); People v. Temelkoski, 859 N.W.2d 743, 760-61 (Mich. Ct. App. 2014).
One such challenger, Paul Betts, was ultimately successful. In 2012, he was convicted in a Michigan court of failing to comply with the SORA's requirement to report his change of e-mail address. See People v. Betts, 968 N.W.2d 497, 536 (Mich. 2021). He had been placed on the sex offender registry due to a 1993 conviction for CSC. Id. He appealed his SORA conviction, arguing that the law's application to him violated constitutional prohibitions on ex post facto laws. Id. at 537. In 2014, the Michigan Court of Appeals denied his request for leave to appeal his conviction due to lack of merit. Id. He then appealed that decision to the Michigan Supreme Court, which held the appeal in abeyance for several years. Id.
Meanwhile, in federal court, several plaintiffs filed suit in the Eastern District of Michigan, challenging the validity of the 2006 and 2011 amendments to the SORA on several constitutional grounds. In 2015, the district court concluded that the SORA's requirement in Mich. Comp. Laws § 28.725(1)(f) to report internet identifiers in person violated the First Amendment because it unnecessarily burdened free speech. Does #1-5 v. Snyder, 101 F.Supp.3d 672, 704 (E.D. Mich. 2015) (“Does I”). Consequently, it enjoined enforcement of that provision, among others. Id. at 713. The plaintiffs in that case also contended that applying the 2006 and 2011 amendments to them violated the Ex Post Facto Clause of the U.S. Constitution, but the court concluded that it lacked jurisdiction to decide that issue. Id. The parties appealed that decision.
On August 25, 2016, the Court of Appeals for the Sixth Circuit reversed the decision in Does I and held that the SORA's reporting requirements and its restrictions on where offenders can live and work violated the Ex Post Facto Clause when applied to individuals whose offenses predated the 2006 and 2011 amendments. See Does #1-5 v. Snyder, 834 F.3d 696, 706 (6th Cir. 2016) (“Does II”). The Sixth Circuit remanded the case for entry of a judgment consistent with its opinion. Id. The Court of Appeals did not address the First Amendment issue because anything it would say on that matter would be dicta. Id. The parties appealed the Sixth Circuit's decision. The Supreme Court denied a petition for a writ of certiorari on October 7, 2017. See Snyder v. Does #1-5, 138 S.Ct. 55 (2017).
Although not relevant here, Plaintiff mentions People v. Solloway, 891 N.W.2d 255 (Mich. Ct. App. 2016), in which the Michigan Court of Appeals vacated an individual's conviction for violating the SORA's requirement to register internet identifiers “routinely used” by the offender, see Mich. Comp. Laws § 28.727(1)(h) and (i) (2011), because those provisions were unconstitutionally vague. Solloway, 891 N.W.2d at 265. That case is not relevant because the provision used to convict Plaintiff did not contain the “routinely used” language that the court in Solloway found problematic.
Back in federal court, on January 26, 2018, in accordance with the Sixth Circuit's decision in Does II, the district court entered a stipulated judgment declaring that retroactive application of the 2006 and 2011 amendments to the SORA was unconstitutional because it violated the Ex Post Facto Clause of the U.S. Constitution. See Does #1-5 v Snyder, 449 F.Supp.3d 719, 724-25 (E.D. Mich. 2020) (“Does III”). The other constitutional challenges still remained unresolved, however. On February 14, 2020, when discussing the Sixth Circuit's opinion in Does II, the district court concluded that the Sixth Circuit had “relegated to dicta” the district court's prior decision that the requirement to report internet identifiers violated the First Amendment because the Sixth Circuit did not address that issue. Id. at 724. ...
To continue reading
Request your trial