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Does v. Snyder

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

March 31, 2015

JOHN DOES #1-5 and MARY DOE, Plaintiffs,
v.
RICHARD SNYDER and COL. KRISTE ETUE, Defendants

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For John Does, 1-5, Mary Doe, Plaintiffs: Douglas R. Mullkoff, Kessler & Mullkoff, Ann Arbor, MI; Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Detroit, MI; Miriam J. Aukerman, American Civil Liberties Union of Michigan, Grand Rapids, MI; Sofia V. Nelson, ACLU of Michigan, Detroit, MI; William W. Swor, Detroit, MI; Paul D. Reingold, University of Michigan, Ann Arbor, MI.

For John Doe #5, Intervenor Plaintiff: Douglas R. Mullkoff, Kessler & Mullkoff, Ann Arbor, MI; Miriam J. Aukerman, American Civil Liberties Union of Michigan, Grand Rapids, MI; Paul D. Reingold, University of Michigan, Ann Arbor, MI.

For RICHARD D. SNYDER, Col. KRISTE ETUE, Defendants: Erik A. Grill, Michigan Department of Attorney General, Public Employment, Elections and Tort, Lansing, MI.

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OPINION AND ORDER RESOLVING MOTIONS FOR JUDGMENT

ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE.

Plaintiffs John Does #1-5 and Mary Doe bring the instant action against Governor Richard Snyder and Director of the Michigan State Police Colonel Kriste Etue, named in their official capacities, challenging Michigan's Sex Offenders Registration Act (" SORA" ), as amended in 2011 and 2013. Both parties have filed Rule 52 motions for judgment on the stipulated facts and records submitted by the parties. ( See Dkt. ## 90-95). Plaintiffs seek a declaratory judgment and permanent injunction, and ask the court to grant judgment in their favor on Counts IV, V, VI, VII, and IX of their First Amended Complaint. (Dkt. # 96, 5669-70.) Defendants move the court to find Plaintiffs' challenges without merit and grant judgment in their favor. (Dkt. # 97, Pg. ID 5721.) The parties have willingly waived their right to a full trial in their Rule 52 motions and have stipulated that the court may enter judgment based on the record submitted by the parties. For the reasons set forth below, Plaintiffs' motion will be granted in part and denied in part and Defendants' motion will be granted in part and denied in part.

I. BACKGROUND

A. Statutory History

Michigan enacted SORA in 1994. 1994 Mich. Pub. Acts 295. The 1994 Act established a confidential database containing information about sex offenders that was available only to law enforcement. 94 Mich. Pub. Acts 295, § 10. SORA has been amended numerous times. See 1996 Mich. Pub. Acts 494; 1999 Mich. Pub. Acts 85; 2002 Mich. Pub. Acts 542; 2004 Mich. Pub. Acts 238, 239, 240; 2005 Mich. Pub. Acts 121, 127, 132; 2006 Mich. Pub. Acts 46; 2011 Mich. Pub. Acts 17, 18; 2013 Mich. Pub. Acts 149. As of April 1997, SORA requires law enforcement agencies to make certain registration information available for public inspection, 1996 Mich. Pub. Acts 494, § 10(2), and following the 1999 amendments to SORA, registry information became available through the Internet. See 1999 Mich. Pub. Acts 85, § § 8(2), 10(2), and 10(3). The amendments between 2002 and 2006, inter alia, increased reporting requirements for registrants; introduced a one-time registration fee; removed the registration requirement for certain individuals assigned to youthful trainee status; prohibited registrants from working, residing, or loitering within 1,000 feet of a school; and created a program whereby members of the public could be notified electronically when a sex offender moved into a particular zip code. See generally 2002 Mich. Pub. Acts 542; 2004 Mich. Pub. Acts 238, 239, 240; 2005 Mich. Pub. Acts 121, 127, 132; 2006 Mich. Pub. Acts 46.

The 2011 amendments significantly altered SORA to comply with the federal Sex Offender Registration and Notification Act (" SORNA" ), 42 U.S.C. § 16901 et seq. In its current form, SORA categorizes registrants into three tiers which determine the length of time that individuals must register and the frequency with which they

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must report. Mich. Comp. Laws § § 28.722(r)-(w); 28.725(10)-(13). Tier classifications are based solely on a registrant's offense and do not factor in an individualized determination of risk. Tier I offenders must register and comply with SORA obligations for fifteen years; Tier II offenders must register and comply with SORA obligations for twenty-five years; and Tier III offenders must register and comply with SORA for life. Mich. Comp. Laws § § 28.725(10)-(13). The most recent amendments became effective while this case was pending and now require registrants to pay a pay a $50 annual registration fee. 2013 Mich. Pub. Acts 149.

B. Plaintiffs

All six Plaintiffs are Michigan residents who are Tier III offenders and thus required by law to register as sex offenders and comply with SORA for life. (Dkt. # 90, Pg. ID 3729.) Following are brief descriptions of Plaintiffs and their offenses.

In 1990, after losing his job at McDonald's, Doe #1 attempted to rob his former employer. ( Id. at 3737.) During the robbery, Doe #1 forced the McDonald's manager and her fourteen-year-old son into the restaurant; when the manager did not open up the safe, Doe #1 struck the manager and kicked her son. ( Id. ) The manager and her son were able to escape. ( Id. ) Doe #1 was charged with eleven felony counts. He pleaded no contest to kidnapping (for holding the fourteen-year-old child against his will) and pleaded guilty to the other charges, including armed robbery. ( Id. ) In 1991, Doe #1 was sentenced to twenty-two to forty years in prison. ( Id. at 3738.) He was paroled in November 2009 and completed his parole in November 2011. ( Id. at 3739.) Although Doe #1's criminal offense lacked an overtly sexual component, under the 2011 amendments to SORA, he is classified as a Tier III offender and is required to comply with SORA for life because he was convicted of kidnapping a minor. ( Id. ) He has two adult children and one toddler, and he co-parents his fiancé e's teenage daughter. ( Id. )

Doe #2 pleaded guilty under the Holmes Youthful Trainee Act (" HYTA" ), Mich. Comp. Laws § 750.520d(1)(a), to criminal sexual conduct III after having a sexual relationship with his fourteen-year-old " girlfriend" in 1996 when he was eighteen years old. ( Id. at 3741.) His plea was based on the prosecutor's promise that his records would be sealed. ( Id. at 3743.) Under the HYTA, Doe #2 was assigned the status of " youthful trainee" and sentenced to two years probation. ( Id. at 3742.) After completing his probation, his case was dismissed without conviction being entered pursuant to Mich. Comp. Laws § 762.14(1). Designation as a " youthful trainee" is included in the definition of " convicted" under SORA, Mich. Comp. Laws § 28.722(b). Doe #2 is classified as a Tier III offender and must therefore comply with SORA for life. ( Id. at 4745.) Doe #2 currently has a teenage daughter. The daughter's mother has full custody, and Doe #2 has weekend visitation rights. ( Id. at 3747.)

In 1998, at the age of nineteen, Doe #3 had a sexual relationship with a fourteen year old. ( Id. at 3748.) Doe #3 pleaded guilty to attempted criminal sexual conduct and was sentenced to four years of probation under the HYTA. ( Id. at 3750.) During his last year on probation, Doe #3 failed to timely register under SORA. ( Id. at 3751.) His HYTA status was revoked, and a conviction was entered. ( Id. ) Doe #3 has a nine-year-old son, a six-year-old son, and an infant son. ( Id. ) He was originally required to register for a period of twenty-five years on a non-public registry,

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but was reclassified as a Tier III offender in 2011. ( Id. at 3750, 3752.)

Doe #4 pleaded guilty to attempted criminal sexual conduct III in 2006 after having a sexual relationship with a female under the age of sixteen, who he met in a nightclub restricted to those aged eighteen years and older. ( Id. at 3752-53.) He was twenty three years old at the time. ( Id. at 2752.) Doe #4 was sentenced to five years probation, which he completed. ( Id. at 3753.) He is currently involved in a romantic relationship with his victim, who is now over eighteen years old. They have a sevenyear-old daughter and an infant child, and Doe #4 has two other children as well. ( Id. at 3754.) In 2011, Doe #4 was classified as a Tier III offender, extending his period of registration from twenty-five years to life. ( Id. ) Doe #5 was added to this action by a stipulated order entered on August 27, 2013. (Dkt. # 34.) In 1980, he was convicted of criminal sexual conduct III and sentenced to two to fifteen years of imprisonment. (Dkt. # 90, Pg. ID 3757.) At the time of the conduct, Doe #5 was twenty one years old and the victim was seventeen years old. ( Id. ) The victim testifed at trial that the sexual conduct was nonconsenual, and

Doe #5 and his sister testifed that it was consensual. ( Id. ) Doe #5 served approximately twenty-one months of his sentence. ( Id. ) He was not required to register as a sex offender until 2011 after he pleaded guilty to larceny pursuant to SORA's " recapture" provisions, added by the 2011 amendments, which require registration for eligible recidivists who are convicted of any additional felony after July 2011. See Mich. Comp. Laws § 28.724(5). (Dkt. # 90, Pg. ID 375.) Doe #5 did not timely register and was therefore cited for a probation violation and jailed for ninety days. ( Id. at 3759.) He has children and grandchildren. ( Id. at 3761)

Ms. Doe was convicted in Ohio of one count of unlawful sexual conduct with a minor in 2003 for having a sexual relationship with a fifteen-year-old male when she was twenty-nine years old. ( Id. at 3761-62.) She was sentenced to three years in prison, but was granted judicial release after serving less than eight months of her sentence. ( Id. at 3763-65.) Ms. Doe was assigned to the lowest risk level of Ohio's sex offender registry, which required address verification once a year for ten years. ( Id. at 3763-64.) She moved to Michigan in 2004 after her judicial release. She was initially required to register quarterly for twenty-five years, but was reclassified as a Tier III offender in 2011. ( Id. at 3765-66.) Ms. Doe has a teenage daughter, step-children, and three grandchildren under the age of ten, and she is expecting another grandchild. ( Id. )

C. The Constitutional Challenges

Plaintiffs claim that the retroactive nature of SORA, its extensive reporting requirements and prohibitions, and its broad application violate their constitutional rights. Their First Amended Complaint seeks declaratory and injunctive relief enjoining Defendants from enforcing certain provisions of SORA and barring the retroactive application of the 2011 and 2013 amendments to Plaintiffs. (Dkt. # 46, Pg. ID 903-04, 911.) The complaint alleges nine counts: (1) violation of the Ex Post Facto Clause by the retroactive application of the 2011 amendments (Count I); (2) violation of Plaintiffs' fundamental rights to travel protected by the Due Process Clause (Count II); (3) violation of Plaintiffs' fundamental right to engage in common occupations of life protected under the Due Process Clause (Count III); (4) violation of Plaintiffs' right to direct the education and upbringing of their children under the Due Process Clause (Count IV); (5) violation of Plaintiffs' right to free

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speech as protected by the First Amendment incorporated through the Fourteenth Amendment (Count V); (6) violation of the Due Process Clause because the Act is retroactive and " harsh or oppressive or [] violates principles of fundamental fairness" (Count VI); (7) violation of the Due Process Clause because certain provisions are vague, impossible to comply with, or wrongly impose strict liability (Count VII); (8) violation of the Headlee Amendment to the Michigan Constitution which prohibits the state legislature from requiring local governments to increase their level of participation in a state program unless the increase is fully funded by the state (Count VIII); and (9) violation of the Ex Post Facto Clause by the retroactive application of the 2013 amendments (Count IX). (Dkt. # 46, Pg. ID 896-902, 910-11.)

Defendants filed a motion to dismiss Plaintiffs' original complaint. The court granted in part and denied in part the motion, dismissing with prejudice Counts I, II, and III, dismissing with prejudice VI inasmuch as it applies to the retroactive application of SORA to Does ##1 and 2, and dismissing without prejudice Count VIII. The motion was denied with respect to Counts IV, V, and VII. It was denied with respect to Count VI inasmuch as it applies to the retroactive extension the lifetime registration requirement to Does ##3 and 4 and Ms. Doe. (Dkt. # 27, Pg. ID 703-04 (published at Does v. Snyder, 932 F.Supp.2d 803, 824 (E.D. Mich. 2013)). Count IX was added to the Amended Complaint after the court entered its order disposing of Defendants' motion to dismiss.

II. STANDARD

Both parties have moved for a summary bench trial on the records submitted by the parties, in the form of a joint statement of facts and accompanying exhibits (Dkt. ## 90-95). " [A] district court may decide a case by summary bench trial upon stipulation of the parties as long as the parties have willingly foregone their right to a full trial." Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 142-43 (2d Cir. 1998); see May v. Evansville-Vanderburgh Sch. Corp., 787 F.2d 1105, 1115-16 (7th Cir. 1986); Nielsen v. W. Elec. Co., 603 F.2d 741, 743 (8th Cir. 1979); Starksy v. Williams, 512 F.2d 109, 112- 13 (9th Cir. 1975). Here, Plaintiffs and Defendants willingly waived their right to a full trial in their motion papers and have requested that the court enter judgment based on the record before it. (Dkt. ## 96, 97.) When reviewing Rule 52 motions, " the court does not view the evidence in the light most favorable to the nonmoving party, as it would in passing on a Rule 56 motion for summary judgment or a Rule 50(a) motion for judgment as a matter of law; instead, it exercises its role as a factfinder." United States v. $242,484.00, 389 F.3d 1149, 1172 (11th Cir. 2004).

III. DISCUSSION

A. Count VII: Vagueness, Impossibility, and Strict Scrutiny

In Count VII, Plaintiffs claim SORA violates the Due Process Clause of the Fourteenth Amendment because provisions of SORA are improperly vague, impossible to comply with, and/or wrongly impose strict liability. In particular, Plaintiffs challenge (1) the prohibition on working within a student safety zone, Mich. Comp. Laws § § 28.733-734; (2) the prohibition on loitering within a student safety zone, Mich. Comp. Laws § § 28.733-734; (3) the prohibition on residing within a student safety zone, Mich. Comp. Laws § § 28.733, 28.735; (4) the requirement to immediately report changes in personal data, Mich. Comp. Laws § 28.725; (5) the requirement to report educational information, Mich. Comp. Laws § 28.724a; and (6) the requirement to maintain a driver's license

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or state personal identification card with a current address, Mich. Comp. Laws § 28.725a(7). (Dkt. # 46, Pg. ID 900-01.)

1. Void for Vagueness

" It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104');">408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). The Supreme Court's vagueness doctrine has two primary goals: (1) " to ensure fair notice to the citizenry" and (2) " to provide standards for enforcement by the police, judges, and juries." Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1104 (6th Cir. 1995). In light of these goals, courts have developed a two-part test to determine if a statute is unconstitutionally vague. First, the court must determine whether the law gives a person " of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned, 408 U.S. at 108. In reviewing a vagueness challenge, the court considers whether " ordinary people, exercising ordinary common sense, can understand [a statutory prohibition] and avoid conduct which is prohibited, without encouragement of arbitrary and discriminatory enforcement. United States v. Salisbury, 983 F.2d 1369, 1378 (6th Cir. 1993). Second, the court must evaluate whether the statute provides sufficiently " explicit standards for those who apply them" or whether, due to a statute's vagueness, it " impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis." Grayned, 408 U.S. at 108-09. " The standards of enforcement must be precise enough to avoid 'involving so many factors of varying effect that neither the person to decide in advance nor the jury after the fact can safely and certainly judge the result.'" Columbia Natural Res., 58 F.3d at 1105 (quoting Cline v. Frink Dairy Co., 274 U.S. 445, 465, 47 S.Ct. 681, 71 L.Ed. 1146 (1927)).

" The degree of vagueness that the Constitution tolerates . . . depends in part on the nature of the enactment." Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). " The [Supreme] Court has expressed greater tolerance of enactments with civil rather than criminal penalties . .., recognized that a scienter requirement may mitigate a law's vagueness . .., [and stated that] perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights." Id. at 498-99. The challenged provisions of SORA impose criminal sanction for non-compliance, Mich. Comp. Laws § § 28.729, 734(2), 735(2), make Plaintiffs strictly liable for failure to comply with certain requirements and prohibitions, Mich. Comp. Laws § § 28.725a, 729(2), 734-735, and implicate Plaintiffs' First Amendment right to free speech and their fundamental right to participate in the education and upbringing of their children, see infra Sections III.B and III.C. Accordingly, the court's standard for vagueness will be more exacting.

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On the other hand, the rule of lenity reduces the risk of unfair notice and unclear enforcement standards. " [A]s a sort of 'junior version of the vagueness doctrine,' the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered." United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). Where possibly ambiguous provisions of SORA are made clear when construed in light of the rule of lenity, the vagueness doctrine would not void those provisions. Therefore, the court applies the two-part test for vagueness with due consideration to SORA's enhanced need for definiteness and SORA's reduced risk of vagueness.

It is unclear from Plaintiffs' complaint whether their vagueness claim was intended as a facial or as applied challenge. However, " it is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." United States v. Krumrei, 258 F.3d 535, 537 (6th Cir. 2002) (quoting United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975)); see also Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) (" First Amendment freedoms are not infringed by [the statute at issue], so the vagueness claim must be evaluated as the statute is applied to the facts of this case." ); United States v. Kernell, 667 F.3d 746, 750 (6th Cir. 2012) (" For challenges to the statute that do not implicate First Amendment concerns, the defendant bears the burden of establishing that the statute is vague as applied to his particular case, not merely that the statute could be construed as vague in some hypothetical situation." (internal quotation marks and citation omitted)). But see City of Chicago v. Morales, 527 U.S. 41, 55, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (plurality) (finding that a facial vagueness challenge was appropriate against " a criminal law that contains no mens rea requirement and infringes on constitutionally protected rights" ) (citation omitted); Belle Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553, 557 (6th Cir. 1999) (" [E]ven in cases not involving First Amendment rights, we have recognized that courts may engage in a facial analysis where the enactment imposes criminal sanctions." ). Plaintiffs' void for vagueness challenges only invoke the First Amendment with regard to the Internet use reporting requirements. ( See Dkt. # 46, Pg. ID 900-01; Dkt. # 96, Pg. ID 5678-90; Dkt. # 99, Pg. ID 5816-23). With regard to all of the other vagueness challenges, " [Plaintiffs] bear[] the burden of establishing that the statute is vague as applied to this particular case, not merely that the statute could be construed as vague in some hypothetical situation." Krumrei, 258 F.3d at 537 (citing United States v. Avant, 907 F.2d 623, 625 (6th Cir. 1990)). Nonetheless:

When contesting the constitutionality of a criminal statute, it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights. When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.

Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (internal quotation marks and citations omitted). Thus, to the extent that Plaintiffs have curtailed their conduct, because it is unclear whether such conduct violates SORA, the court finds a constitutional vagueness challenge proper.

i. Geographic Exclusion Zones

Plaintiffs first challenge SORA's geographic exclusion zones as void for vagueness. SORA makes it a crime for a registrant to work, " loiter," or reside " within a " student safety zone." Mich. Comp. Laws § § 28.734(1)(a)-(b), 28.735(1). SORA defines " school safety zone" as " the area that lies 1,000 feet or less from school property." Mich. Comp. Laws § 28.733(f). SORA defines " school property" to mean:

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[A] building, facility, structure, or real property owned, leased, or otherwise controlled by a school, other than a building, facility, structure, or real property that is no longer in use on a permanent or continuous basis, to which either of the following applies: (I) [i]t is used to impart education instruction[, or] (ii) [i]t is for use by students not more than 19 years of age for sports or other recreational activities.

Mich. Comp. Laws § 28.733(e).

Plaintiffs contend that the term " school safety zone" is unconstitutionally vague because SORA provides insufficient guidance for how the 1,000 feet zones should be measured. (Dkt. # 96, Pg. ID 5681-86.) Plaintiffs note that the zones are not physically marked, and registrants are not provided with maps demarking the boundaries. Without demarcation or maps, the typical registrants are unable to identify the zones because they lack the software and data to map the zones, and Michigan has not provided a list of school properties or parcel data to registrants or law enforcement. (Dkt. # 96, Pg. ID 5681-82.) Additionally, Plaintiffs argue that the term is vague because there is no guidance as to whether the 1,000 feet distance should be measured " point to point" or " property-line to property line" nor whether it should be measured " as the crow flies or as people actually travel." (Dkt. # 96, Pg. ID 5681-82.)

" Because plaintiffs cannot know where the zones are, they must 'over-police' themselves, erring on the side of caution." ( Id. at 5684.) For example, Doe #4's partner testified that Doe #4 does not live with her and their two children because their house is down the street from a school, and she was not sure if the school was within 1,000 feet of her home. (Dkt. # 90, Pg. ID 3863.) Likewise, Doe #1, Doe #3, and Ms. Doe testified that they had difficulties searching for new homes because they were unable to accurately calculate the 1,000 feet distances. ( Id. at 3831-42.) Ms. Doe testified that she looked at properties farther than 1,000 feet from schools " so that I know that I'm okay." ( Id. at 3842.)

While a prescribed distance may appear concrete on its face, without adequate guidance about how to measure the distance, such provisions are suspectible to vagueness concerns. For example, in Cunney v. Bd. of Trustees, 660 F.3d 612 (2d Cir. 2011), the Second Circuit considered whether a zoning ordinance that prohibited the building of structures " over two stories tall or four and one-half feet above the easterly side of River Road" was void for vagueness. Id. at 621. The court held that, while the ordinance " affords a reasonable person adequate notice of what it generally prohibits (e.g., three-story buildings will be in violation), it is remarkably unclear with respect to how the four and a half foot limitation is defined." Id. The ordinance did not specify " from what adjacent elevation point on River Road the height of a building must be measured . . . . Consequently, this shortcoming not only fails to give specific notice of how a permit applicant should design his site plan so that the proposed building complies with that restriction, but it also fails to provide an objective standard that Village itself can apply . . . ." Id. Similarly, the geographic exclusion zone provisions in SORA generally inform Plaintiffs that they may not reside, work, or loiter within 1,000 feet of a school zone, but, like the ordinance at issue in Cunney, SORA does not clarify how to measure the 1,000 feet.

It is unclear whether SORA's exclusion zones should be measured from only the real property on which educational instruction, sports, or other recreational activities take place--excluding the parking lot, administrative buildings, and other real property

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used for other purposes--or whether the zone should be measured from the school property line even when some of the real property is not used for one of the stated purposes. An attorney with the Prosecuting Attorneys' Association of Michigan testified that prosecutors share " a pretty strong consensus that [the 1,000 feet distance] is measured property line to property line." (Dkt. # 90, Pg. ID 3830.) Even assuming that this reflects SORA's intended meaning, it nonetheless would be difficult for law enforcement and registrants to parse through school-owned real property to determine which is used for instruction, sports, or recreation, and which is not. However, the prosecutors' alleged consensus does not reflect a literal reading of SORA. A literal reading of SORA would exclude from the definition of " school property" parking lots, school administrative buildings, and other parts of a school's real property where no instruction, sports, or other recreational activcities occur. This literal, but arguably less practical, reading of SORA is bolstered by the rule of lenity because it reads the statute's ambiguity in the registrants' favor.

Assuming the 1,000 feet zones were measured from the property line, registrants would still be unable to reasonably determine the boundaries of the exclusion zones, resulting in the sort of " over-policing" described by Doe #4's partner. Michigan has not provided registrants with a map of exclusion zones or a list of all school properties. Defendants suggest that registrants can rely on Google maps (www.google.com/maps) and phone books to determine if their potential address is within 1,000 feet of an exclusion zone. (Dkt. # 97, Pg. ID 5767.) However, such tools do not eliminate many of the sources of vagueness. First, neither Google maps nor phone books provide parcel data or clearly mark property lines. Second, while Google maps can provide helpful estimates as to distances between two properties, it would not provide a registrant with the necessary detail to determine whether a property that is close to 1,000 feet away from a school property line falls within an exclusion zone.

Furthermore, Defendants acknowledge that neither the Michigan State Police nor current registrants have the necessary data to precisely determine the geographic exclusion zones. Michigan is developing software called Offender Watch that reportedly will provide law enforcement with a standardized guideline for determining exclusion zones, but Offender Watch cannot currently conduct parcel to parcel measurements because the State Police do not have the necessary data. (Dkt. # 90, Pg. ID 3831 (" The [Michigan State Police's Sex Offender Registration] Unit has tried but been unable to obtain parcel data . . . ." ).) Moreover, Offender Watch will not include all properties as defined by SORA, but only " active schools according to the Michigan Department of Education." (Dkt. # 90, Pg. ID 3830-31.) Nothing in Defendants' Rule 52 motion or the Joint Statement of Facts suggests that law enforcement has the means to calculate the exclusion zones if a court should determine that the 1,000 feet distance should be measured from only the parts of a school's real property used for instruction, sports, or other recreational activities.

SORA does not provide sufficiently definite guidelines for registrants and law enforcement to determine from where to measure the 1,000 feet distance used to determine the exclusion zones, and neither the registrants nor law enforcement have the necessary data to determine the zones even if there were a consensus about how they should be measured. Accordingly, due to SORA's vagueness, registrants are forced to choose between limiting where they reside, work, and loiter to a greater

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extent than is required by law or risk violating SORA.

ii. Loitering

Next, Plaintiffs contend that SORA's prohibition against " loiter[ing]" within 1,000 feet of school property is unconstitutionally vague because the meaning of " loiter" is " totally unclear." (Dkt. # 96, Pg. ID 5686.) SORA defines " loiter" to mean " to remain for a period of time and under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors." Mich. Comp. Laws § 28.733(b). Plaintiffs argue that it is unclear " whether they are permitted to attend parent-teacher conferences, go to a school movie night, or take their children to a school play-ground on the weekend." (Dkt. # 96, Pg. ID 5687.) Defendants counter that the term is clear, and describe Plaintiffs' argument as " making some kind of 'as-applied' challenge without the statute actually having been applied in the manner they argue." (Dkt. # 97, Pg. ID 5770.) But Plaintiffs' challenges are more than hypothetical. As discussed above, they need not risk violating SORA in order to challenge the law; Plaintiffs may challenge the definition of " loiter" to the extent that it has curtailed their conduct. Cf. Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979).

SORA's prohibition on loitering has curtailed Plaintiffs' conduct. For example, in order to avoid risking a SORA violation, Doe #3 does not " attend school activities like movie nights, math nights, bingo nights, open house/meet the teacher, talent shows, musicals, concerts or plays." (Dkt. # 90, Pg. ID 3861.) Likewise, Doe #3's wife suggests that Doe #3 avoids " waiting for [her] children to come out of school and talk to his niece or nephew or observe his own children walking down from school" for fear that this conduct would violate the prohibition on loitering. (Dkt. # 90, Pg. ID 3853.) Thus, the court construes the vagueness challenge against the definition of " loiter" as an as applied challenge.

The definition of " loiter" contains two parts: (1) " remain[ing] for a period of time" and (2) " under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors." Mich. Comp. Laws § 28.733(b). As this is an as applied challenge, the court will review the vagueness of this term as it relates to the activities from which Plaintiffs claim to have refrained. First, " ordinary people, exercising ordinary common sense can understand" the meaning of the phrase " remain for a period of time." States v. Salisbury, 983 F.2d 1369, 1378 (6th Cir. 1993). Webster's Third New International Dictionary 1919, 2394 (3d ed. 1981) defines " remain" to mean " to stay in the same place or with the same person or group," and it defines " time" to mean " a period during which something (as an action, process, or condition) exists or continues." Whether or not the phrase " period of time" embodies a degree of ambiguity by itself, the phrase " remain for a period of time" refers to staying in a school zone for any duration. Driving one's child to school and then immediately leaving the school zone does not involve " remain[ing]" in the school zone for any period of time; meanwhile, waiting at the school to pick up one's child after school does involve " remain[ing]" in the school zone for a period of time. Ordinary people using common sense can deduce that, to " attend parent-teacher conferences, go to a school movie night, or take their children to a school play-ground on the weekend" (Dkt. # 96, Pg. ID 5686-87), a registrant would need to " remain for a period of time" in a school zone. Likewise, Doe #3's abstention from waiting for his wife's children after school and observing his children walking from

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school is not the result of unconstitutional vagueness in the phrase " remain for a period of time" because such activities fall within the meaning of the phrase.

The second component of the definition of " loiter" raises a more difficult question. In City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999), the Supreme Court considered whether an ordinance prohibiting criminal street gang members from loitering was unconstitutionally void for vagueness. A plurality of the court found that the definition of the term " loiter" was ambiguous. The ordinance at issue in Morales defined " loiter" as " to remain in any one place with no apparent purpose." Id. at 56. The plurality reasoned, " It is difficult to imagine how any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an 'apparent purpose.'" Id. at 57.

Similarly, just as it would be difficult to determine if a Chicagoan were standing in a place with no apparent purpose, in many circumstances, it would be difficult--perhaps not as difficult, but difficult nonetheless--to determine if a Michigander were standing in an exclusionary zone " apparently" for the specific, primary purpose of observing or contacting minors. Conduct such as a registrant starting a conversation with a minor, videotaping a minor, or standing on a playground by himself watching minors, would likely fall within the definition of " loitering" with little room for a registrant to argue ambiguity. However, it remains ambiguous whether a registrant may attend a school movie night where he intends only to watch the screen, or a parent-teacher conference where students may be present. The Morales plurality explained that " the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law [because] '[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.'" Id. (quoting Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939)). SORA's present definition of " loiter" is sufficiently vague as to prevent ordinary people using common sense from being able to determine whether Plaintiffs are, in fact, prohibited from engaging in the conduct from which Plaintiffs have refrained.

iii. Reporting Requirements

Plaintiffs also argue that SORA's reporting requirements are unconstitutionally vague. In particular, Plaintiffs challenge the requirement that a registrant must " report in person and notify the registering authority . . . immediately after . . . the individual purchases or begins to regularly operate any vehicle," Mich. Comp. Laws § 28.725(1)(g), and the requirements that a registrant must report (1) " [a]ll telephone numbers registered to the individual or routinely used by the individual," (2) " [a]ll electronic mail addresses and instant message addresses assigned to the individual or routinely used by the individual," and (3) " [t]he license plate number, registration number, and description of any motor vehicle, aircraft, or vessel owned or regularly operated by the individual and the location at which the motor vehicle, aircraft, or vessel is habitually stored or kept." Mich. Comp. Laws § 28.727(1)(h)-(j). Plaintiffs assert that the terms " routinely used," " regularly operated," and " habitually stored and kept" are vague and undefined. (Dkt. # 96, Pg. ID 5687-88.)

The requirements to report telephone numbers and e-mail and instant message addresses implicate First Amendment free speech rights and are, therefore, subject to facial vagueness challenges. The requirement to report vehicles does not implicate First Amendment rights, but Plaintiffs adequately

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articulate how alleged vagueness in the term " regularly operate" has caused certain Plaintiffs to choose between potentially over-reporting information or risk violating SORA. For example, Doe #1's employer owns a fleet of vehicles, and Doe #1 testified that he is unsure whether he must report all of the vehicles (and inform his employer that all of the vehicles have been reported) because there is a chance he may drive any particular vehicle at some point. (Dkt. # 90, Pg. ID 3933.) Likewise, Doe #2 drives his girlfriend's car " once a quarter to go register and maybe two or three other times in that period." ( Id.) Doe #2 does not know if this constitutes " regular use" for the purposes of SORA. The court interprets the record as setting forth a vagueness challenge to the vehicle reporting requirement as applied to Does ##1 and 2. For the same reasons, Plaintiffs may also challenge the telephone reporting provision as applied to Doe #4. Doe #4 is unsure whether he must register his mother's telephone number, which he uses " on occasion." (Dkt. # 90, Pg. ID 3936.) See Babbitt, 442 U.S. at 298 (internal quotation marks and citations omitted) (" When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." ). For both the as applied challenges and facial challenges, the vagueness in these provisions renders them constitutionally infirm for the reasons discussed below.[1]

SORA does not define " regularly" or " routinely" as used in § § 28.725(1)(g) and 727(1)(h)-(j). " Unless they are otherwise defined, the words in a statute 'will be interpreted as taking their ordinary, contemporary, common meaning.'" Deutsche Bank Nat'l Trust Co. v. Tucker, 621 F.3d 460, 463 (6th Cir. 2010) (quoting United States v. Plavcak, 411 F.3d 655, 660 (6th Cir. 2005)). Webster's Third New International Dictionary 1913 (3d ed. 1981) defines " regularly" as " in a regular, orderly, lawful, or methodical way," and it defines " regular," in relevant part, as " steady or uniform in course, practice, or occurrence" and " returning, recurring, or received at stated, fixed, or uniform intervals." In the court's March 18, 2014 Opinion and Order Granting in Part and Denying in Part Defendants' Amended Motion to Dismiss, the court denied Defendants' motion to dismiss as to Count VII, finding that a similar dictionary definition of the term " regularly" does not " appear to provide an individual of ordinary intelligence a reasonable opportunity to know when he or she must report their use of a vehicle. Nor does the word 'regularly,' without some additional elaboration ...


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