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Lewis v. Snyder

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

June 6, 2018

MAN LEWIS, JR., Plaintiff,
v.
RICHARD SNYDER and COLONEL KRISTE K. ETUE, Defendants.

          THOMAS L. LUDINGTON DISTRICT JUDGE.

          REPORT AND RECOMMENDATION ON MOTIONS FOR SUMMARY ORDER JUDGMENT (DOCS. 21, 25)

          PATRICIA T. MORRIS UNITED STATES MAGISTRATE JUDGE.

         I. RECOMMENDATION

         For the reasons that follow, IT IS RECOMMENDED that Plaintiff's Motion for Summary Judgment (Doc. 21) be GRANTED IN PART as to the retroactive application of SORA's 2006 and 2011 Amendments, that Defendant's Motion for Summary Judgment (Doc. 25) be GRANTED IN PART, that relief be granted Plaintiff in accordance with the analysis set forth below, and that the remainder of Plaintiff's Complaint be DISMISSED.

         II. REPORT

         Plaintiff Man Lewis, Jr. (“Plaintiff”)—who proceeds pro se and in forma pauperis—filed this § 1983 lawsuit on March 13, 2017, against Defendants Richard Snyder and Colonel Kriste K. Etue (“Defendants”). (Doc. 1). In it, he admits to three prior criminal convictions: (1) a 1978 conviction for procuring or inducing a person to engage in prostitution, M.C.L. 750.455; (2) a 1983 conviction for attempted criminal sexual conduct in the third degree, M.C.L. 750.520d; and (3) a 1983 conviction for criminal sexual conduct in the first degree, M.C.L. 750.520b. (Doc. 1 at 3). As a result of these convictions, he must comply with Michigan's Sex Offender Registration Act (“SORA”), M.C.L. § 28.723, et seq. In his view, however, because SORA emerged after his convictions, it constitutes an ex post facto law and is unconstitutional as applied to him. He seeks a declaration that the Act—“specifically, the retroactive application of the [2006 and 2011] amendments”—is unconstitutional as applied to him, and he wants this Court to enjoin Defendants from enforcing it against him. (Doc. 1 at 1-2). See generally M.C.L. § 28.723, et seq.; Mich. Pub. Acts 121, 127 (2005) (the 2006 amendments); Mich. Pub. Acts. 17, 18 (2011) (the 2011 amendments) Defendant filed a Response and Cross-Motion for Summary Judgment on March 25, 2018, (Doc. 25), to which Plaintiff replied, (Doc. 26). In his Reply, Plaintiff appears cognizant that Defendants move for summary judgment, and therefore I construe the filing also as a Response to Defendant's Motion. Accordingly, this case is ripe for report and recommendation.

         In making his argument, Plaintiff draws heavily on the Sixth Circuit's opinion in Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016), reh'g denied (Sept. 15, 2016), which held, among other things, that:

Michigan's SORA imposes punishment. . . . [T]he fact that sex offenders are so widely feared and disdained by the general public implicates the core counter-majoritarian principle embodied in the Ex Post Facto clause. . . . The retroactive application of SORA's 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.

Id. at 705-06. See generally (Doc. 1).

         Plaintiff's instant Motion outlines particular harms caused by SORA's registration requirements. He avers, for instance, that police officers and members of the general public have harassed him after finding his address and photograph on the registry. (Doc. 21 at 9-10). His registration status also causes significant “mental stress” because he encounters seemingly insurmountable difficulty securing housing or employment. (Id. at 10-17).[1]Defendant's Motion concedes that SORA's 2006 and 2011 amendments should not apply to Plaintiff, but maintains that the registration requirements predating these amendments do not constitute ex post facto punishment, and therefore should continue to retroactively apply. (Doc. 25).

         The Constitution prohibits states from passing “any . . . ex post facto Law, ” codifying the foundational principle that criminal punishment must not issue without prior notice. U.S. Const. art. I, § 10, cl. 1; see Calder v. Bull, 3 U.S. 386, 390 (1798) (“[T]he plain and obvious meaning and intention of the prohibition is this; that the Legislatures of the several states, shall not pass laws, after a fact done by a subject, or citizen, which shall have relation to such fact, and shall punish him for having done it.”). In determining whether a law punishes, the Supreme Court employs a two-part test: (1) “whether the legislature intended a civil or criminal consequence, ” and; (2) if the legislature intended a civil consequence, whether the “law's substance” is punitive. Smith v. Doe, 538 U.S. 84, 107 (2003). The following factors guide this Court's evaluation of the latter prong:

Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions.

         Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963). The Supreme Court's opinion in Smith v. Doe—which addressed whether the retroactive reach of a similar Alaskan sex-offender registration scheme violated the Constitution's Ex Post Facto clause—is uniquely instructive to the analysis that follows. See generally 538 U.S. at 89-91. In general, “states are free to pass retroactive sex-offender registry laws and . . . those challenging an ostensibly non-punitive civil law must show by the ‘clearest proof' that the statute in fact inflicts punishment.” Does #1-5, 834 F.3d at 705.

         Plaintiff agrees with the Sixth Circuit's rationale in Does #1-5 that the Michigan legislature did not intend SORA to be punitive. See (Doc. 1 at 8) (acknowledging that SORA “evinces no punitive intent”). The only remaining issue, therefore, is whether, as applied to Plaintiff, SORA's registration requirements, ...


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