United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANTS' MOTION TO
STAY (DKT. 26); DENYING DEFENDANT
WORTHY'S MOTION TO DISMISS (DKT. 33); AND GRANTING
PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (DKT.
MARK A. GOLDSMITH United States District
case concerns Michigan's Sex Offender Registration Act
(“SORA”), Mich. Comp. Laws § 28.721 et
seq. Recently, the Sixth Circuit issued Does #1-5 v.
Snyder, 834 F.3d 696 (6th Cir. 2016), reh'g
denied, (Sept. 15, 2016), which held that certain
provisions of SORA, added by amendment, cannot be applied
retroactively without violating the Ex Post Facto Clause of
the U.S. Constitution. One registrant, Mary Roe, moves for a
preliminary injunction that will enjoin the enforcement of
these amendments against her (Dkt. 34). Although Does
#1-5 answers the underlying legal question, it is
uncontested that the Does #1-5 only binds state
prosecutorial authorities as to the named plaintiffs in that
case. For the reasons that follow, this Court declines to
stay or dismiss the case and grants Roe's motion.
was amended, in pertinent part, in 2006 and 2011. The 2006
Amendment prohibits registrants from living, working, or
loitering within 1000 feet of a school. See 2005
Mich. Pub. Acts 121, 127. The 2011 Amendment requires all
registrants to appear in person “immediately” to
update information such as new vehicles or “internet
identifiers” (e.g., a new email account), or to provide
travel plans that would take them away from their registered
residence for more than seven days. See 2011 Mich.
Pub. Acts 17, 18. The 2011 Amendment also establishes a
three-tiered, public classification of registrants, assigning
a registrant's tier based in part on his or her crime of
conviction, and it retroactively lengthens the time that one
must remain on the registry based upon one's tier.
August 25, 2016, the Sixth Circuit issued Does #1-5 v.
Snyder. That case held that the retroactive imposition
of the 2006 and 2011 Amendments on those who were convicted
before the Amendments' enactment amounts to “a
criminal penalty” and, therefore, violates the Ex Post
Facto Clause. In light of that holding, it declined to reach
the issue - decided by the district court per the Honorable
Robert Cleland in favor of the plaintiffs, see Doe v.
Snyder, 101 F.Supp.3d 672, 684 (E.D. Mich. 2015) -
whether the 1000-foot school zone law was void for vagueness.
instant Plaintiff, Mary Roe, was convicted in 2003 of having
sex with “an underage teen” when she was 19.
See Am. Compl. ¶ 3 (Dkt. 20). She became
subject to the version of SORA in effect at that time.
Id. She served two and a half years in prison.
Id. ¶ 42. Subsequently, she became subject to
the 2006 and 2011 Amendments when they became effective.
Id. ¶ 49.
employed as the clinical director of a residential drug
treatment facility, located in Wayne County, and has been for
the past eight years. Id. ¶ 7. Pursuant to
SORA, she routinely reported her employer's address to
authorities since becoming employed there. Id.
¶ 51. On September 9, 2016 - after the August 25, 2016
issuance of Does #1-5, but before rehearing was
denied - a Royal Oak police officer (Officer Kevin Cavanaugh)
informed Roe that her place of employment was within 1000
feet of a school in violation of the 2006 Amendment, Mich.
Comp. Laws § 28.734(1)(a), and that she must resign
immediately or face prosecution for a SORA violation.
See Am. Compl. ¶¶ 6, 8. Cavanaugh
indicated at that time that he was aware of Does
#1-5. Id. ¶ 57. At their meeting,
Plaintiff told Cavanaugh that her research indicated that her
workplace was 1, 056 feet from a school; Cavanaugh said that
his own research indicated that the distance was less than 1,
000 feet. Id. ¶¶ 63-64.
thereafter, SORA's publicly accessible registry listed
Roe as “Non-compliant, Employment Violation.”
Id. ¶¶ 58-60; see also Redacted
Registry Page for Mary Roe, Ex. 3 to Am. Compl. (Dkt. 20-4).
Thereafter, the Royal Oak police department, per a
stipulation with Roe, agreed to take affirmative action to
restore her status to “compliant, ” see
12/12/16 Stip. & Order (Dkt. 45), and Roe now admits that
she is listed as “compliant” on the public
registry, see Pl. Mot. at 5 n.4 (Dkt. 34). Pursuant
to that same stipulation, Officer Cavanaugh and Royal Oak
Police Chief Corrigan O'Donohue agreed, on behalf of the
Royal Oak Police Department, not to refer Roe to any
prosecutorial authority for any violation of the Amendments
“that occurs before, or within 21 days after, the date
of the final disposition of the ex post facto claim” in
Does #1-5. 12/12/2016 Stip. & Order at
claims that Cavanaugh's instruction that she must quit
her job violated the holding of Does #1-5. Am.
Compl. ¶ 9. She further claims that she remains subject
to the current iteration of SORA, including its specific
restrictions pertaining to reporting and travel, and being
branded a “tier III” offender, id.
¶¶ 10, 50, 70-71. Additionally, she claims that,
notwithstanding Does #1-5, “[i]t is
impossible for [her] to identify the areas that are inside
and outside these geographic exclusion zones, ” i.e.,
the 1000-foot border surrounding schools. Id. ¶
66. She has never been provided with a map or an explanation
of how the distance is to be measured. Id. ¶
67. Roe argues that the 2006 and 2011 Amendments “are
so embedded in the law that they are not severable from the
rest of the statute.” Id. ¶ 73. Does
#1-5 did not address severability. In the alternative
(i.e., if the Amendments are deemed severable), Plaintiff
argues that the Amendments cannot be enforced, both because
of Does #1-5 and because of the reasoning behind
Judge Cleland's holdings that (i) the 1000-foot
“exclusion zones” are void for vagueness and (ii)
certain of the registration requirements are void for
vagueness. See Am. Compl. ¶¶ 74-77;
see also 932 F.Supp.2d 803; 101 F.Supp.3d
Roe admits that Judge Cleland's holdings are “not
binding, ” but she claims that they provide “an
additional reason why those [1000-foot exclusion] zones
cannot be applied” to her. Am. Compl. ¶ 78.
Motion to Stay
Sixth Circuit ultimately did not stay its mandate in Does
#1-5, see 11/23/2016 Mandate, Snyder v.
Does #1-5, 15-1536 (6th Cir. 2016), and, on December 14,
2016, the Does #1-5 defendants petitioned for a writ
of certiorari in the United States Supreme Court, see
Snyder v. Does #1-5, 16-768 (U.S. Dec. 15, 2016), which
seeking to stay proceedings in one case for the resolution of
another must “make out a clear case of hardship or
inequity in being required to go forward, if there is even a
fair possibility that the stay for which he prays will work
damage to someone else.” Landis v. N. Am. Co.,
299 U.S. 248, 255 (1936); see also Caspar v. Snyder,
77 F.Supp.3d 616, 644 (E.D. Mich. 2015) (“Where the
stay motion is premised on the alleged significance of
another case's imminent disposition, courts have
considered the potential dispositive effect of the other
case, judicial economy achieved by awaiting adjudication of
the other case, the public welfare, and the relative
hardships to the parties created by withholding
Richard Snyder and Kriste Etue - Michigan's Governor and
Director of the State Police, respectively - filed a motion
to stay proceedings in this case pending a final judgment in
Does #1-5 (Dkt. 26). Defendant Jessica Cooper, the
Oakland County Prosecutor, joined in that motion (Dkt. 27).
Their motion asserts that, if certiorari is denied in
Does #1-5 or if the decision is upheld, that
“would have application” to Roe's claims in
this case. See Mot. to Stay at 5. Similarly, if that
decision is reversed, it would resolve “any
challenge” brought by Roe. Id. The motion
argues that Roe will not be prejudiced by a stay, because
there is no genuine threat that she will be prosecuted, and
that the instant case is a waste of judicial resources in
light of its overlap with Does #1-5. Id. at
Court is unpersuaded by these arguments. First, and most
importantly, the prejudice argument misapprehends the injury
claimed by Roe. She does claim that she fears prosecution for
her alleged workplace violation; but she also claims current
and ongoing harm caused by SORA's restrictions and being
publicly labeled a “tier III” offender.
See Am. Compl. ¶¶ 50, 70-71. Roe has,
therefore, alleged that a stay will “work damage”
to her while waiting for the decision on the certiorari
petition in the other case. And Defendants have not alleged
any “hardship or inequity in being required to go
forward, ” Landis, 299 U.S. at 255, other than
that which might affect this Court. This Court's
additional work on this case, however, is not cognizable
prejudice to Defendants.
it is not true that a decision upholding Does #1-5
“would have application” to Roe, nor is it true
that a decision overturning Does #1-5 would resolve
“any challenge” brought by Roe. If Does
#1-5 actually controlled any prosecutorial decision
concerning Roe - as opposed to just the plaintiffs in that
case - then the instant Defendants, presumably, would have no
issue entering into a written agreement not to prosecute her
for any violation of the Amendments for as long as Does
#1-5 remains good law. But they refuse to do this.
Moreover, a Supreme Court decision upholding Does
#1-5 will result only in the continuation of the status
quo. And a decision reversing Does #1-5's Ex
Post Facto holding would not resolve all of Roe's claims;
she also challenges the Amendments on vagueness grounds and
asserts that they are not severable from the remainder of the
because of the constitutional nature of Roe's asserted
interests - i.e., her wish to be free from the decidedly
unconstitutional imposition of certain criminal penalties -
the public interest is served by addressing Roe's claims
without delay. See Caspar, 77 F.Supp.3d at 644
(“the public interest is always served by robust
protection of constitutional guarantees”).
the motion for stay is denied.
seeks a preliminary injunction enjoining Defendants from
prosecuting her under “any provision of SORA that
cannot be applied to her consistent with [Does #1-5]
(including the work zone provision), or from identifying her
as noncompliant based on the violation of any such
provision.” Pl. Mot. at 1-2. Prior to reaching the
merits of Roe's request for injunctive relief, however,
this Court must address Defendants' justiciability
arguments, which take the form of (i) standing, (ii)
ripeness, and (iii) mootness. See DaimlerChrysler Corp.
v. Cuno, 547 U.S. 332, 352 (2006) (“The doctrines
of mootness [and] ripeness . . . originate in Article
III's ‘case' or ‘controversy'
language, no less than standing does.”).