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Does v. Snyder

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

May 8, 2015

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

NOTICE OF MOTION HEARING

ROBERT H. CLELAND, District Judge.

Plaintiffs John Does #1-5 and Mary Doe filed a nine count First Amended Complaint challenging the constitutionality of the Michigan's Sex Offenders Registration Act ("SORA"), as amended in 2011 and 2013. (Dkt. # 46, Pg. ID 840.) Both parties filed Rule 52 motions for judgment on the stipulated facts and records submitted by the parties. ( See Dkt. ## 90-95). The court resolved the majority of Plaintiffs' claims in the March 28, 2013 Opinion and Order Granting in Part and Denying in Part Defendants' Amended Motion to Dismiss (Dkt. # 27, Pg. ID 669) and the March 31, 2015 Opinion and Order Resolving Motions for Judgment (Dkt. # 103, Pg. ID 5875). In the latter opinion, the court reserved judgment on two issues raised by Plaintiffs: (1) whether Mich. Comp. Laws § 28.725a(7) is unconstitutional as applied to John Doe #4 and (2) whether it is constitutional for the lifetime registration requirement's incorporation of the requirement to report "[a]ll electronic mail addresses and instant message addresses assigned to the individual... and all login names or other identifiers used by the individual when using any electronic mail address or instant messaging system, " Mich. Comp. Laws § 28.727(1)(i), to be applied retroactively. (Dkt. # 103, Pg. ID 5946.) The court requested additional briefing on both issues, which the parties provided on April 20, 2015. (Dkt. ## 104, 106, 107.) After reviewing the record, the court has determined that a hearing is necessary to resolve these issues.

I. The Constitutionality of Mich. Comp. Laws § 28.725a(7) as Applied to Mr. Doe #4

Mich. Comp. Laws § 28.725a(7) provides:

An individual required to be registered under this act shall maintain either a valid operator's or chauffeur's license issued under the Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923, or an official state personal identification card issued under 1972 PA 222, MCL 28.291 to 28.300, with the individual's current address. The license or card may be used as proof of domicile or residence under this section. In addition, the officer or authorized employee may require the individual to produce another document bearing his or her name and address, including, but not limited to, voter registration or a utility or other bill. The department may specify other satisfactory proof of domicile or residence.

Plaintiffs contend that § 28.725a(7) violates the Due Process Clause because Mr. Doe #4 "is automatically and unpreventably in violation" of SORA inasmuch as "he is homeless [and] cannot update his driver's license to match his registration address (which is homeless')." (Dkt. # 96, Pg. ID 5692.) In the Joint Statement of Facts, the parties stipulated:

Since becoming homeless Mr. Doe #4 has been unable to comply with the SORA requirement that he maintain a driver's license or personal identification that matches the address he uses to register for SORA. The Secretary of State will not issue identification with homeless' as an address. Mr. Doe #4, who is registered under SORA as homeless, cannot get a driver's license that matches his registration information.

(Dkt. # 90, Pg. ID 3939.)

The requirement that the address listed on a registrant's Michigan identification card match the address he uses to register for SORA is not immediately apparent from a plain reading of § 28.725(a)(7); nonetheless, "Defendants admit that registrants are strictly liable if they do not have a driver's license or personal identification card that matches their registry address...." (Id. ) Similarly, the parties provided an excerpt of Michigan State Police Official Order 79, dated April 27, 2007, which also appears to require that the address listed on the Michigan identification card and the address used to register with SORA are the same:

G. If the offender is homeless, the generic address of 123 Homeless' shall be entered into the computerized database, along with the offender's city, state, zip code, and country code.
...
5.
...
B. The address on the SOR record must match the address on the Michigan driver license or Personal Identification Card. If the address does not match, the member shall give the offender the opportunity to immediately visit the nearest Secretary of State branch office for the necessary address change and ...

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