The opinion of the court was delivered by: Hon. Gordon J. Quist
Plaintiffs, five individuals with prior criminal sexual conduct ("CSC") convictions, who are either currently homeless or have been so in the past, and two non-profit, charitable organizations that operate overnight shelters for homeless persons in Grand Rapids, Michigan, seek declaratory and injunctive relief concerning application of the residency restrictions of Michigan's Sex Offender Registration Act ("SORA" or the "Act"), M.C.L.A. § 28.721, et seq. to emergency overnight shelters. Plaintiffs have sued Rick Snyder, the Governor of Michigan, Bill Schuette, the Michigan Attorney General, and Colonel Kriste Etue, the Director of the Michigan State Police (collectively the "State Defendants")*fn1 , as well as William Forsyth ("Forsyth"), the Kent County Prosecutor, all in their official capacities. Plaintiffs filed their complaint in response to the death of Thomas Pauli, a homeless man with a prior CSC conviction who froze to death on the street in Grand Rapids. Pauli was forced into the freezing cold after an overnight shelter located within 1,000 feet of a school denied him admission because of his status as a registered sex offender. Like Pauli, the individual plaintiffs, identified in the pleadings as Jane Poe, John Doe, Robert Roe, Mark Moe, and Larry Loe, are all subject to SORA as a result of their CSC convictions.
Plaintiffs, the State Defendants, and Forsyth have all filed motions for summary judgment. For the reasons set forth below, the Court will grant Plaintiffs' motion in part and deny Defendants' motions. The Court will issue its declaratory judgment as to the meaning of "reside" as defined in the Student Safety Zone provisions of SORA, but will deny injunctive relief.
A. SORA's Registration and Residency Provisions
Pursuant to SORA, individuals who have been convicted of certain listed sexually-related offenses are required to comply with the Act's registration and reporting requirements. M.C.L. §§ 28.723-25. When registering, the offender must provide, among other things, his or her address and a summary of convictions for the listed offenses. M.C.L. § 27.727(a) & (b). In addition to registering, an offender is required to periodically report to the local law enforcement agency "for verification of domicile or residence," and to notify the local law enforcement agency within 10 days after the offender changes his or her residence or domicile. M.C.L. §§ 29.725(1), 29.725a(4).
An individual subject to SORA must also comply with the "Student Safety Zones" provisions, which were incorporated into SORA effective June 1, 2006. M.C.L. §§ 28.733-28.736. In particular, subject to certain exceptions not relevant here, a registered sex offender "shall not reside within a student safety zone." M.C.L. § 28.735(1). SORA defines a "student safety zone" as "the area that lies 1,000 feet or less from school property." M.C.L. § 28.733(f). The Student Safety Zone provisions of SORA do not define the term "reside" as used in M.C.L. § 28.735(1). A registered sex offender who violates § 28.735(1) is subject to criminal liability, with the first offense being a misdemeanor punishable by not more than one year imprisonment and subsequent offenses being a felony punishable by not more than two years imprisonment. M.C.L. § 28.735(2). These provisions are the root of the instant case.
All parties in this case agree that the definition of "residence" in SORA's registration requirements cannot be the same as "reside" in the Student Safety Zone provisions of SORA. Considering the breadth of Michigan Supreme Court's scope of "residence" in People v. Dowdy, 489 Mich. 373, 802 N.W.2d 239 (2011) and M.C.L. § 28.722(g), the definition in Dowdy and the code would virtually amount to banishment.
Plaintiff Mel Trotter Ministries is a non-profit, charitable organization that provides various services to homeless persons in Grand Rapids, including an overnight shelter for men. (Merchut Aff. ¶ 1.)*fn2 Mel Trotter Ministries is located within 1,000 feet of a school. Men who sleep at Mel Trotter must arrive by 7 p.m. in the evening and depart the facility by 7 a.m. the next morning. (Id. ¶ 7.) Homeless men who stay overnight at Mel Trotter are permitted to bring a limited number of personal possessions with them to the shelter in a plastic bag or small backpack, but they must take their property with them when they leave the next morning. (Id. ¶ 9.) There is no limit on the number of nights men may stay at Mel Trotter, but there is also no guarantee that they will be able to stay there on any given night because beds are assigned on a first-come/first-served basis and admission can be denied for lack of room or other reasons. (Id. ¶ 11.) Until recently Mel Trotter had believed that registered sex offenders could not stay overnight at its shelter because of the Student Safety Zone legislation. Mel Trotter personnel thus generally denied admission to homeless individuals if they were aware that such individuals were subject to sex offender registration. (Id. ¶ 4.)
Plaintiff Degage Ministries is a non-profit, charitable organization that provides services to homeless persons in Grand Rapids, including an overnight drop-in center for women. Degage Ministries' facility is located within 1,000 feet of a school. (Palmerlee Aff. ¶¶ 1, 3.) The drop-in center is available for overnight stays from 8 p.m. to 8 a.m. (Id. ¶ 7.) Like Mel Trotter, women who sleep overnight are permitted to bring a limited number of personal items, but they must take their belongings with them when they leave the next morning. (Id. ¶ 9.) Unlike Mel Trotter, Degage Ministries rents lockers to homeless men and women, although space is limited. Thus, some individuals who sleep overnight may not have locker space, while some individuals who have rented lockers may sleep on the street or at another agency. (Id. ¶¶ 10-11.) There is no limit on the number of nights a woman may stay, but room is limited and there is no guarantee that space will be available on any particular night. (Id. ¶ 12.) Until recently, Degage had believed that sex offender registrants could not stay at its shelter and thus denied such persons admission if their sex offender status was known. (Id. ¶ 4.)
Plaintiffs Poe, Doe, Roe, Moe and Loe each has a prior conviction that subjects him or her to the requirements of SORA, including the prohibition of residing within 1,000 feet of a school. They are now, or have been, homeless and have previously used the emergency shelter services offered by Mel Trotter, Degage Ministries, and/or Guiding Light Mission, a shelter that is not a plaintiff in this case but is located within 1,000 feet of a school.
Jane Poe, who is approximately 23 years old and has mental and emotional impairments, was convicted of a misdemeanor CSC charge when she was 20 years old. She is not able to hold a job and has no money to pay for a place to stay. (Poe Aff. ¶¶ 3-4.) Poe states that she has been raped and beaten up in the past and is afraid to be on the streets. (Id. ¶ 5.) Poe stays at different places-- including with friends, at Degage Ministries, and on the street." (Id.) Poe is concerned that if she cannot stay at a shelter, she may have no place to go and could suffer the same fate as Mr. Pauli. (Id. ¶¶ 14-15.)
John Doe was convicted of a sex offense approximately 20 years ago. Doe is currently homeless and in the past has stayed in various shelters and with friends. (Doe Aff. ¶¶ 4-5.) Doe rents a locker at Degage Ministries but does not stay there. In August 2009, the Grand Rapids Police told Doe that he could not use Guiding Light Ministries as his registration address because it was within 1,000 feet of a school. (2d Doe Aff. ¶ 6.) After seeking legal advice, Doe sought to register as homeless, but the police told him that he had to give an address and that the address could not be a shelter address as they are all located within 1,000 feet of a school (Id. ¶¶ 7-8.) Doe then moved to Ann Arbor to stay in a shelter that was located outside a school safety zone. When Doe returned to Grand Rapids for his belongings, however, he was arrested and prosecuted for failing to register. (Id. ¶ 10.) Although Doe's counsel advised Doe that he had a good defense, Doe chose to plead guilty because he would have had to remain in jail until the case went to trial and he could not have afforded bond. (Id. ¶¶ 12, 14-16.) Given this prosecution, Doe is afraid of being prosecuted for sleeping in a homeless shelter without a ruling that it is legal for him to do so. (Id. ¶ 20.)
Robert Roe was convicted of fourth degree CSC in 2001. He had been staying at the Battle Creek Veterans Administration Home but had to leave because he was on the sex offender registry. (Roe Aff. ¶ 6.) Roe moved to Grand Rapids in 2009 to find work. He initially stayed at Guiding Light Mission but left in December 2009 after the police told him that he would be prosecuted if he continued to sleep there. (Id. ¶¶ 7, 10.) Roe ended up renting a room for $225 per month, which is almost all of the $270 in disability benefits he receives each month. (Id. ¶ 11.) Roe is concerned about becoming homeless again if he cannot pay his rent and believes that there is a very real probability that he will end up homeless again. (Id. ¶¶ 12-13; 2d Roe Aff. ¶ 7.)
Larry Loe, who was 23 years old at the time he signed his first affidavit, was convicted of third degree CSC in 2006, when he was age 19. (Loe Aff. ¶¶ 2, 3.) Loe is currently homeless and has been sleeping at Guiding Light Mission. (Id. ¶ 6.) Loe attempted to register with the Grand Rapids Police Department using Guiding Light Mission's address. He was advised that he could not use that address and that he would be prosecuted if he continued to use Guiding Light Mission after April 7, 2010. (Id. ¶ 6.) Loe had abdominal surgery in March 2010. Following his release from the hospital, Loe obtained assistance from a social services agency to ensure that he could continue to stay at Guiding Light Mission while he recovered. The agency referred Loe to Legal Aid of Western Michigan. (Id. ¶ 9.) His attorney wrote to the prosecutor, Forsyth, asking that Loe be allowed to continue sleeping at Guiding Light Mission, but Forsyth declined to give permission, stating that "absent a change in the law or the issuance of an injunction, I am not willing to allow [Loe] to violate the law by continuing to sleep at Guiding Light Mission." (Id. ¶ 10; letter of 3/31/10 from Aukerman to Forsyth; letter of 4/5/10 from Forsyth to Aukerman.) Loe apparently continues to use the shelters, but is fearful that he will be prosecuted. (Loe Aff. ¶ 12; 2d Loe Aff. ¶ 8.) Loe fears that if the shelters learn that he is on the sex offenders registry, they will not allow him to stay there, leaving him nowhere else to stay. (2d Loe Aff. ¶¶ 7, 8.)
In November 2009, Plaintiffs, various homeless advocacy organizations, and the Grand Rapids Police Department requested a declaratory ruling from the Michigan State Police as to whether SORA's residency restrictions apply to homeless registrants staying at overnight emergency shelters, but the Michigan State Police declined to issue a ruling. Thereafter, Plaintiffs filed a complaint in the Ingham County Circuit Court alleging three claims which sought: (1) a declaration that registered sex offenders accessing overnight shelters do not "reside" at the shelter for purposes of SORA's residency restrictions; and (2) alternate declarations that the Student Safety Zone Provisions violate both federal and state constitutional prohibitions on cruel and/or unusual punishment and ex post facto punishment if the Student Safety Zone Provisions are interpreted to preclude homeless sex offenders from accessing overnight shelters. Plaintiffs also requested injunctive relief. Defendants removed the case to this Court on the basis of federal question jurisdiction. On June 1, 2010, this Court denied Plaintiffs' motion to remand the state law claims to state court. Plaintiffs then filed a motion for preliminary injunction. Although the Court held a hearing, it did not decide the motion. Instead, on November 23, 2010, the Court entered a stipulated order staying the proceedings pending a decision by the Michigan Supreme Court in Dowdy. The Michigan Supreme Court has decided Dowdy, but its decision does not resolve this case. Therefore, the parties have moved for summary judgment.
In their motion for summary judgment Plaintiffs request a declaratory judgment that individuals subject to SORA's registration and reporting requirements may sleep overnight in, or spend multiple nights in, homeless shelters or drop-in centers located within 1,000 feet of a school without violating SORA's residency restrictions. Plaintiffs also request a permanent injunction barring enforcement of SORA's residency restrictions with regard to their use or operation of overnight shelters. The State Defendants argue that they are entitled to summary judgment because Plaintiffs lack standing and their claims are not ripe. All Defendants contend that SORA's residency restrictions do not constitute punishment under the United States Constitution or the Michigan Constitution and thus constitute neither cruel and/or unusual punishment nor ex post facto punishment. Finally, Defendant Forsyth argues that he should be dismissed because, as a county prosecutor, he is effectively an agent of the state and thus, is not a necessary party given that he will be bound by judgment issued against the State Defendants.