People v. Betts

• Decision Date: 27 July 2021
• Docket Number: SC 148981
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. PAUL J. BETTS, JR., Defendant-Appellant.
• Court: Michigan Supreme Court

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. PAUL J. BETTS, JR., Defendant-Appellant.

No. SC 148981

Supreme Court of Michigan

July 27, 2021

Argued October 7, 2020 (Calendar No. 1).

Bridget M. McCormack, Chief Justice: Brian K. Zahra David F Viviano Richard H. Bernstein Elizabeth T. Clement Megan K Cavanagh Elizabeth M. Welch Justices:

Paul J Betts, Jr., entered a no-contest plea in the Muskegon Circuit Court, William C. Marietti, J., to violating the registration requirements in MCL 28.729(1)(a) of Michigan's Sex Offenders Registration Act (SORA), MCL 28.721 et seq., as amended by 2011 PA 17 and 18 (the 2011 SORA) conditional on his ability to challenge on appeal the constitutionality of the retroactive application of the 2011 SORA. Defendant pleaded guilty in 1993 to second-degree criminal sexual conduct (CSC-II), MCL 750.520c. The trial court sentenced defendant to 5 to 15 years' imprisonment. Two years later, SORA took effect. After defendant's successful completion of parole, defendant failed to comply with SORA requirements. Specifically, in 2012, defendant failed to report his change of residence, his e-mail address, and his purchase of a vehicle within 3 days, contrary to MCL 28.725(1)(a), (f), and (g), as amended by 2011 PA 17. The prosecution charged defendant with violating SORA's registration requirements, MCL 28.729(1)(a). Defendant moved to dismiss the charge, arguing that the retroactive application of the 2011 SORA requirements violated the constitutional prohibitions on ex post facto laws. The trial court denied this motion. Defendant ultimately entered a no-contest plea, conditional on his ability to challenge on appeal the constitutionality of the retroactive application of the 2011 SORA. The trial court sentenced defendant to 36 months' probation, with 12 months' jail time, but suspended imposition of that sentence during the pendency of defendant's appeal. Defendant sought leave to appeal in the Court of Appeals, and in an unpublished order entered on February 27, 2014 (Docket No. 319642), the Court of Appeals, K. F. Kelly, P.J., and Riordan, J. (Stephens, J., dissenting), denied defendant's application for lack of merit in the grounds presented. Defendant sought leave to appeal in the Supreme Court, and after a period of abeyance for the resolution of related cases, the Supreme Court ordered oral argument on the application. 502 Mich. 880 (2018). Following oral argument, the Supreme Court granted defendant's application for leave to appeal and directed further oral argument. 504 Mich. 893 (2019). The Legislature subsequently enacted a series of amendments of SORA, effective March 24, 2021, and therefore the Supreme Court issued an order directing the parties to provide supplemental briefing to address the effect, if any, of the new legislation on the case. 507 Mich. ___ (2021).

In an opinion by Justice Clement, joined by Chief Justice McCormack and Justices Bernstein and Cavanagh, the Supreme Court held:

Michigan's Sex Offenders Registration Act, MCL 28.721 et seq., as amended by 2011 PA 17 and 18, when applied to registrants whose criminal acts predated the enactment of the 2011 amendments, violates the constitutional prohibition on ex post facto laws, U.S. Const, art I, § 10; Const 1963, art 1, § 10.

1. The Michigan Legislature enacted SORA in 1994; this first version of SORA created a confidential database accessible only to law enforcement. It required persons convicted of certain sex offenses to register and notify law enforcement of address changes. SORA initially conceived a confidential law enforcement tool to manage registrants' names and addresses, but by 2012, that tool transformed into a publicly accessible database that imposed significant restrictions on the lives of registrants. Defendant alleged that this transformation caused the retroactive application of the 2011 SORA to violate constitutional ex post facto protections. U.S. Const, art I, § 10 and Const 1963, art 1, § 10 prohibit ex post facto laws. A law is considered ex post facto if it increases the punishment for a committed crime. A two-step inquiry is used to determine whether retroactive application of the 2011 SORA unconstitutionally increases the punishment for defendant's CSC-II conviction. First, it must be determined whether the Legislature intended the statute as a criminal punishment or a civil remedy. If a criminal punishment was intended, the retroactive application of such a statute violates the ex post facto prohibitions, and the inquiry ends. However, if the Legislature intended to impose a civil or regulatory remedy, it must then be determined whether the statutory scheme is so punitive either in purpose or effect as to negate the state's intention to deem it civil. The following factors are relevant to the inquiry: whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment (i.e., retribution and deterrence), whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned. In this case, while some aspects of SORA suggested a punitive intent, the Legislature likely intended SORA as a civil regulation rather than a criminal punishment. The Legislature stated that SORA was enacted to promote public safety, a nonpunitive goal. However, considering the relevant factors, the 2011 SORA's aggregate punitive effects negated the state's intention to deem it a civil regulation: although the 2011 SORA was connected to a nonpunitive purpose given the low bar of rationality, the 2011 SORA bore significant resemblance to the traditional punishments of banishment, shaming, and parole because of its limitations on residency and employment, publication of information and encouragement of social ostracism, and imposition of significant state supervision; the 2011 SORA imposed onerous restrictions on registrants by restricting their residency and employment, and it also imposed significant affirmative obligations by requiring extensive in-person reporting; the 2011 SORA promoted the traditional aims of punishment because it aimed to protect the public through deterrence and because its restrictions appeared retributive; and given the uncertainty of the 2011 SORA's efficacy, the restraints it imposed were excessive. Considering these factors cumulatively, the 2011 SORA's aggregate punitive effects negated the state's intention to deem it a civil regulation. Accordingly, the retroactive imposition of the 2011 SORA increased registrants' punishment for their committed offenses in violation of federal and state constitutional prohibitions on ex post facto laws.

2. MCL 8.5 expresses a legislative preference for severability. MCL 8.5 provides two important guiding factors: (1) the remaining application of the act must be consistent with the manifest intent of the Legislature, and (2) the remaining application of the act must be operable, i.e., otherwise complete in itself and capable of being carried out without reference to the unconstitutional sentence or provision. In this case, the 2011 amendments completely restructured SORA through the imposition of a tiered classification system, and the duties and requirements of each registrant were based on that registrant's tier classification. Removing the 2011 amendments from SORA would render unclear who was required to comply with the act, how long each registrant must comply how many times annually each registrant must report to law enforcement, and what a registrant must show to petition for removal from registration. Outside the tiered classification system, certain discrete provisions of the 2006 and 2011 amendments-including the student-safety zones of MCL 28.733 to MCL 28.736, as amended by 2005 PA 121, and the in-person reporting requirements of MCL 28.725(1), as amended by 2011 PA 17-could be excised from retroactive application without affecting the statute's workability. However, even if the retroactive application of SORA without these discrete provisions were constitutional, that application would require improper judicial engagement in essentially legislative choices. Furthermore, the passage of 2020 PA 295 did not support the prosecution's proposed remedy for severing the 2011 SORA. Similarly, the proposal of amicus the Gratiot County Prosecutor's Office to remedy the constitutional violation by excising the particular provisions of the 2011 SORA that extended beyond its federal counterpart, the Sex Offender Registration and Notification Act (SORNA), 34 USC 20901 et seq., was rejected. The fact that the 2011 Legislature did not amend SORA to create an identical statutory scheme to SORNA and instead included several additional provisions indicated that the Legislature was, at the very least, not motivated solely by a desire to conform to SORNA. Moreover, this proposed remedy again required improper judicial engagement in the legislative domain. Finally, a former version of SORA could not be applied to defendant through revival. Revival presents special challenges in the context of an ex post facto challenge to a statute with as complicated a legislative history as SORA. This holding did not affect the prospective application of the 2011 SORA to registrants who committed listed offenses after 2011, from the time of their conviction to the effective date of the 2020 SORA amendments. Accordingly, it would not be accurate to say that the SORA amendments failed to alter the statutory scheme, leaving the previous...