United States District Court, E.D. Michigan, Northern Division
L. LUDINGTON DISTRICT JUDGE.
REPORT AND RECOMMENDATION ON MOTIONS FOR SUMMARY
ORDER JUDGMENT (DOCS. 21, 25)
PATRICIA T. MORRIS UNITED STATES MAGISTRATE JUDGE.
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
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.
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
Id. at 705-06. See generally (Doc. 1).
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).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).
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
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.
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, ...