Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Spencer v. Gasper

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

April 10, 2019

WILLIAM SIM SPENCER Plaintiff,
v.
JOSEPH GASPER, Defendant.

          HON. ROBERT J. JONKER, JUDGE

          ORDER TO STAY PROCEEDINGS

          RAY KENT, UNITED STATES MAGISTRATE JUDGE

         In his complaint, plaintiff alleged that defendant Joseph Gasper, director of the Michigan State Police, violated his constitutional rights by enforcing certain requirements of Michigan's Sex Offender Registration Act (SORA). Compl. (ECF No. 1). Plaintiff also filed a motion for an ex parte temporary restraining order and a preliminary injunction (ECF No. 3).

         This is plaintiff's second lawsuit filed to contest the constitutionality of SORA. Plaintiff's first lawsuit, Spencer v. Bill Schuette et al., 1:18-cv-229 (W.D. Mich.), is directed against Bill Schuette (former Michigan Attorney General), Kriste Kibbey Etue (former director of the Michigan State Police), Robert Cooney (Grand Traverse County prosecuting attorney), Kenneth Smith (State Police Enforcement Coordinator for SORA), and Sara Swanson (Benzie County prosecuting attorney). See Spencer v. Schuette (Amend. Compl. (ECF No. 17). In the first lawsuit, plaintiff seeks an injunction to “restrain defendants from administratively changing the registration updating requirements applicable to [p]laintiff, ” an order “directing defendants to discontinue [p]laintiff's registration under SORA immediately, ” and entry of a declaratory judgment “that SORA, as applied to individuals such as Plaintiff who were registered under SORA prior to enactment of Public Act 17 of 2011, is vague, ambiguous and further provides unfettered discretion to police and prosecutors to apply SORA to individuals on an arbitrary and ad hoc basis.” Id. at PageID.65-66. As discussed, infra, this Court has stayed the first lawsuit until the Michigan Courts address plaintiff's constitutional challenges to SORA.

         In the present lawsuit, plaintiff seeks to have SORA be declared “unconstitutional in general or as applied to him because the statute fails to provide for an exception to the Rule of Finality during future criminal prosecutions, where new penalties are sought based on an undisturbed court order to register under SORA that is, in fact, tainted by the ineffective assistance of trial and appellate counsel.” Compl. (ECF No. 1, PageID.1-2). Plaintiff contends that SORA violates his rights under the Due Process Clause of the Fifth and Fourteenth Amendment and the Assistance of Counsel Clause of the Sixth Amendment. Id. at PageID.2. Plaintiff also includes a claim of ineffective assistance of trial and appellate counsel. Id. at PageID.13.

         In his motion for an ex parte temporary restraining order and a preliminary injunction, plaintiff seeks an order to

Enjoin Defendant from applying to Mr. Spencer the “Felony Listed Offense” provision of Michigan Public Act 85 of 1999, which was deleted by the Michigan Legislature on 7/01/2011, until the Court settles the controversy over whether the court order requires Mr. Spencer to register under SORA is tainted by ineffective assistance of counsel in violation of the Sixth and Fourteenth amendments to the federal constitution[.]

         Motion for injunction at PageID.111.

         Plaintiff's claims arise from his arrest “on or about December 23, 2016” when he was “charged with violating the court-order to register under SORA resulting from the 2001 guilty plea proceedings.” Id. at PageID.4-5. This is the same conviction from which plaintiff's first lawsuit arose. This Court recounted the history of plaintiff's conviction in that suit as follows:

         Ultimately, in an order entered on March 18, 2018, the Benzie County Circuit Court quashed his bindover to stand trial. [Compl.] Id. at PageID.52-56. While plaintiff has been litigating this federal action, the parties have been litigating appeals of his criminal case in the Michigan Court of Appeals. The appellate court identified those appeals as follows:

In Docket No. 343367, defendant, William Sim Spencer, appeals by right the circuit court's decision on his request to discontinue registration under the Sex Offenders Registration Act (SORA) in his SORA violation case. In Docket No. 343468, the prosecution appeals by leave granted the same order quashing defendant's bindover, and defendant cross-appeals, seeking the same relief as in Docket No. 343367 and requesting this Court to declare SORA unconstitutional.

People v. Spencer, No. 343367, 2019 WL 286954 at *1 (Mich. App. Jan. 22, 2019). In an opinion entered on January 22, 2019, the Michigan Court of Appeals affirmed “the circuit court's decision to quash [Spencer's] bindover without further relief.” Id. In reaching this determination, the appellate court stated:

In sum, we conclude that the circuit court properly quashed defendant's bindover because the law of the case provides that 1999 PA 85 governs defendant's SORA registration, but the prosecutor charged him with violating 2011 PA 17, and the evidence at the bindover was not sufficient to support a finding that defendant violated 1999 PA 85.
On cross-appeal, defendant argues that the circuit court should have determined that he is not required to comply with SORA because 2006 PA 402 and 2011 PA 17 have nullified the definition of “listed offense” in 1999 PA 85. We reject this argument. Because only 1999 PA 85 applies to defendant, later changes to SORA do not affect his case.

Id. at *4. Plaintiff's criminal case is not concluded, because the parties may ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.