Case Law Review
Federal Court Cases
Does v Snyder (2012) ongoing case
The case challenges, in Federal Court, many issues with Michigan’s SORA law as it was enacted in 2011.
Case Status & Information: http://www.clearinghouse.net/detail.php?id=12293
Audio for Oral arguments in 6th Circuit Court of Appeals can be found by going to http://www.ca6.uscourts.gov/internet/court_audio/audSearch.htm and typing in the underlined case number below:
1-27-2016: 15-1536 Richard Snyder Governor vs John Does
4-27-2016: 15-2346 John Does v Richard Snyder
August 25, 2016 the Federal 6th Circuit Court of Appeals issued an opinion unanimously declaring that portions of Michigan’s Sex Offender Registry are unconstitutional because it punishes registrants and does not have a corresponding public safety benefit. It was also declared that restrictions added to the law in 2006 and 2011 cannot be applied to those convicted prior to when the changes went into effect without a determination of danger. Those changes imposed geographic exclusion zones barring registrants from living, working or spending time with their children in much of the state; imposed extensive reporting requirements; and automatically extended registration to life without a means for review or appeal for the vast majority of registrants. Keep tabs on the ACLU “SORA info” link for updates on what this means for registrants!
ACLU SORA info page: Updated information on the case and information for registrants.
6th Circuit Court of Appeals Opinion: Released August 25, 2016.
2016 SORA FAQ: Frequently asked questions on the 6th Circuit Opinion and background information on the case.
Court Says Michigan Sex Offender Registry laws creating ‘Moral Lepers’: August 26, 2016 Washington Post Article
The case was appealed, by the State of MI, to the US Supreme Court.
March 2017: The Supreme Court asked the Solicitor General to weigh in on the case before they decided whether or not to hear the case. More information and explanation can be found at http://nationalrsol.org/supreme-court-asks-for-input-of-solicitor-general-what-does-this-mean/. This helps explain the pros and cons of the Supreme Court hearing the Does v Snyder case.
July 2017: The Solicitor General released his opinion urging the US Supreme Court not to hear the case, which would let the Appellate Court opinion stand, but only for the states under the 6th Circuit Court of appeals (Kentucky, Michigan, Ohio & Tennessee). Now the Supreme Court will make the decision whether or not they will hear the case. More can be found at: http://nationalrsol.org/solicitor-general-to-scotus-dont-grant-snyder-petition/, including the Solicitor General’s opinion.
Carr v U.S., 130 S.Ct. 2229 (2010)
The Supreme Court dealt with the Sex Offender Registration and Notification Act (“SORNA”), which makes it a federal crime for any person (1) who “is required to register under [SORNA],” and (2) who “travels in interstate or foreign commerce,” to (3) “knowingly fai[l] to register or update a registration.” 18 U.S.C. § 2250(a). The Supreme Court then held that this provision did not apply to sex offenders whose interstate travel occurred before the statute’s effective date.
Poe v Snyder (2011)
Opinion regarding homeless registrants states that “Under the ordinary meaning of “reside,” a registered sex offender does not violate M.C.L. § 28.735(1) by using an emergency overnight shelter under the following conditions: (1) users are admitted to the shelter in the evening and required to leave in the morning; and (2) users have no expectation of obtaining a place in the shelter on any given night. Therefore, registrants may sleep overnight in homeless shelters or drop-in centers located within 1,000 feet of a school, and may spend multiple nights in such shelters, so long as the foregoing conditions apply.”
Doe v Michigan Dept. of State Police, 490 F.3d. 491 (6th Cir. 2007)
The court rejected due process and equal protection challenges to the requirement that youth adjudicated under the Holmes Youthful Trainee Act (“HYTA”) be required to register. SORA’s publication requirement supersedes Homes Youthful Trainee Act (“HYTA”) privacy promise. The court noted that this was “a close question because the sex-offender registry in fact discloses information about the plaintiffs that is not entirely accurate.”
Smith v Doe, 538 U.S. 84 (2003)
The Supreme Court upheld Alaska’s sex offender registry against an ex post facto challenge, allowing for the inclusion of individuals who had committed crimes prior to the adoption of the statute. The Court applied tests from Hendricks and Kennedy-Mendoza-Martinez, 372 U.S. 144 (1963), to find that the retroactive application of the Alaska registration statutes did not violate the Ex Post Facto Clause because the act was civil regulation, rather than punishment.
Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003)
The Court upheld Connecticut’s registry against a due process challenge, where registrants argued that they were entitled to an individualized hearing on dangerousness. The Court held that due process does not require the opportunity to prove a fact that is not material to the State’s statutory scheme. The Court reasoned that because the law was not based on an offender’s dangerousness, but rather only on convictions, disclosing an offender on the registry without a hearing did not violate due process.
Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999)
The court upheld Tennessee’s sex offender registration act against a series of challenges, holding that the act did not violate the prohibition against double jeopardy; did not implicate a constitutionally protected liberty or property interest in employment; did not violate any right to privacy under the federal or state constitutions; and did not violate the Equal Protection Clause.
Michigan Court Cases
People v Temelkoski (2014) Ongoing case
This is a case filed on behalf of a plaintiff who was assigned under the Holmes Youthful Trainee Act in 1993 when he was 19 years old, which he completed successfully and no conviction was ever entered on his record. Under state law he was still required to register for 25 years and with law changes in 2011 he was required to register for life. He was seeking removal from the registry which the trial court granted. The case was appealed to MI Court of Appeals and they reversed the lower court’s ruling. The MI Supreme Court agreed to hear the case and oral arguments were heard on 12/7/2016.
More information on this case can be found at: http://courts.mi.gov/opinions_orders/case_search/pages/default.aspx?SearchType=1&CaseNumber=150643&CourtType_CaseNumber=1
People v Cole, 491 Mich 325; 817 NW2d 497 (2012)
Before accepting a guilty or no contest plea, the trial court must advise the defendant of mandatory lifetime electronic monitoring for first- and second-degree CSC where lifetime monitoring applies. Lifetime monitoring is part of the sentence itself and is a direct consequence of the plea.
People v Fonville, 291 Mich App 363; 804 NW2d 878 (2011)
Defense counsel must provide advice to the defendant prior to the guilty plea that sex offender registration will be a consequence of the plea (if SORA is applicable), and failure to give this advice affects whether the plea is knowingly made. Although not deciding whether SORA consequences are collateral or direct, the Court concluded advice on the consequences of SORA must be given as sex offender registration is a “particularly severe consequence” that is intimately related to the criminal process and because registration is an “automatic result” for certain defendants.
People v Kern, 288 Mich App 513; 794 NW2d 362 (2010)
Monitoring is not required for a defendant convicted of second-degree CSC with a victim under the age of 13 if the sentence imposed is jail and/or probation. The lifetime monitoring provisions were intended for those released on parole and/or discharged from a prison sentence.
People v Dipiazza, 286 Mich App 137; 778 NW2d 264 (2009)
The Court of Appeals held that sex offender registration on a public registry for an 18 year old offender who successfully completed HYTA for a Romeo and Juliet relationship violated the Michigan constitutional ban on cruel or unusual punishment.
Cases in other states
Lifetime Juvenile Sex Offender Registration Unconstitutional – PA Supreme Court
December 29, 2014 the Supreme Court of Pennsylvania ruled that lifetime registration requirement for juveniles under the Pennsylvania Sex Offender Registration and Notification Act is unconstitutional.
Juvenile Law Center article: http://jlc.org/blog/pennsylvania-supreme-court-rules-sex-offender-registration-unconstitutional-youth
Other case law affecting registration issues can be found on the SMART (Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking) website at http://ojp.gov/smart/caselaw.htm.