What you need to know about Does V. Snyder II

Does # 1-6 v. Snyder, No. 16-cv-13137 (E.D. Mich.) (Does II) is a class action lawsuit brought on behalf of all people required to register under Michigan’s Sex Offender Registry Act (SORA). Does II seeks to enforce a successful earlier lawsuit challenging SORA that was brought on behalf of six people (Does I). The purpose of Does II is to apply that earlier decision to all Michigan registrants. This lawsuit only applies to the version of SORA in effect before March 24, 2021, meaning it does not apply to the current version of SORA.

In August 2016, the Sixth Circuit Court of Appeals held that the old SORA’s 2006 and 2011 amendments – which created exclusion zones limiting where registrants can live and work, retroactively lengthened registration periods to life, and imposed many new and in-person reporting requirements – violated the U.S. Constitution’s Ex Post Facto Clause. See Does v. Snyder, 837 F.3d 696 (6th Cir. 2016) (Does I). The district court judge had previously decided in 2015 that the exclusion zones and certain other reporting requirements were unconstitutionally vague or violated the First Amendment, and also held that registrants cannot be prosecuted for inadvertent violations of SORA. Despite the decisions in Does I, the state of Michigan continued to subject almost 44,000 people to SORA.

 

Does II focuses on the legal claims that were successful in Does I. There are four claims. Again, these claims focus on the version of SORA in effect before March 24, 2021, and do not directly apply to the current law. 

• The Ex Post Facto Claim asserts that applying the registration statute to people whose offenses occurred long ago violates the Constitution. The Sixth Circuit in Does I said that the 2006 and 2011 amendments to SORA cannot be applied retroactively. Therefore, people whose offenses pre-dated the 2006 amendments or the 2011 amendments cannot be forced to comply with parts of the law that were passed later. This claim only applies to people whose offenses occurred before those amendments. Specifically:
  • People whose offenses occurred before July 1, 2011, cannot be subjected to the 2011 amendments, which retroactively extended many individuals’ registration terms to life, classified registrants by tiers, and imposed extensive reporting requirements.
  • People whose offenses occurred before January 1, 2006, also cannot be subjected to the 2006 amendments, which imposed restrictions on where people can live, work and “loiter,” and which enabled the public to subscribe to updates about registrants on the internet.
• The Due Process Vagueness Claim asserts that SORA’s exclusion zones (which have since been removed from the law in the 2021 amendments) and some of SORA’s reporting requirements are unconstitutional because it is impossible for registrants to know where the exclusion zones are or what they must report. Under the Constitution’s Due Process Clause, people generally cannot be punished for conduct that they can’t know is illegal. The district court in Does I found that SORA’s exclusion zones, “loitering” provision, and certain reporting requirements were unconstitutionally vague.
• The Due Process Strict Liability Claim asserts that because SORA is a very complicated law and makes many normal activities a crime, registrants can’t be punished for making an innocent mistake about what they are or are not supposed to do under SORA. The district court in Does I said that you cannot be held strictly liable for violating SORA; you have to intend to violate the law to be prosecuted. 
• The Free Speech Claim asserts that SORA’s extensive reporting requirements for online activity violate the First Amendment. The district court in Does I held that some of SORA’s online reporting requirements are unconstitutional.

A class action is a form of lawsuit that permits one or more people (called “plaintiffs”) to represent a larger group (called a “class”) of individuals who all have similar claims. A class action allows the court to decide those claims for everyone at once.

In Does II, there are six individual class representatives who are bringing the case on behalf of all registrants. This is in contrast to Does I, which was brought only on behalf of individual plaintiffs. The class in Does II includes all individuals who were subject to registration under the version of SORA in effect before March 24, 2021. Does II also has ex post facto subclasses which include people who are or will be on the registry for offenses committed before the 2011 amendments were added to SORA.

The state of Michigan agreed to the certification of a class , which means that all decisions in this case apply to everyone in the class of all registrants, as well as the ex post facto subclasses. If you are required to register in Michigan, you do not have to do anything to become part of the class. 

 

On February 14, 2020, the district court applied the rulings from the Does I lawsuit to the entire class. The district court said that parts of the old SORA are unconstitutional and that the law cannot be applied at all to anyone whose underlying sex offense was before the 2011 amendments. The district court’s decision did not go into effect right away because the court gave the legislature time to write a new law.

 

On April 6, 2020, after the pandemic started, the district court issued an interim order preventing the state from enforcing any registration, verification, school zone, and fee violations of the old SORA from February 14, 2020, during the public health crisis caused by the COVID-19 pandemic and thereafter until registrants get notice of their duties. Registrants should not be prosecuted for SORA violations during that time period.

An amended final judgment entered on August 26, 2021. As a reminder, the final judgment does not address the new version of the SORA. Rather, it affects whether registrants can be charged for any past failures to comply with the old SORA. The Court confirmed its previous decisions that (1) people who committed all of their registrable offense(s) before July 1, 2011 cannot be prosecuted for violating the old SORA; and (2) the parts of the old SORA preventing registrants from living, working, or “loitering” within 1,000 feet of school property, and certain reporting requirements, were unconstitutional.

 

 

In response to the lawsuits challenging SORA, the legislature has passed a new law which went into effect on March 24, 2021. The Michigan State Police (MSP) has sent out notice to non-incarcerated registrants about the new law. The notices are very confusing. Many local police officers do not understand the new law and are providing incorrect information. Please review our case update to find the best information we have about the new law. 

 

If you are prosecuted, make sure to talk to you defense attorney about whether you can use the decisions in Does I and Does II in your defense. Individuals who are charged with criminal SORA violations (e.g., residing in an exclusion zone, failure to register) can try to raise Does I and Does II as a defense in criminal court if (a) SORA is being applied retroactively to them, (b) they are prosecuted under parts of the law that the Does I and Does II district court held were unconstitutionally vague or violate the First Amendment, or (c) they are being held strictly liable for SORA violations. Moreover, if you are prosecuted for SORA violations that happened between February 14, 2020, and before you received notice of the new SORA law, you can raise the interim order as a defense. If you are charged with a SORA violation you should seek qualified defense counsel or ask for appointed counsel if you cannot afford an attorney. The Does II litigation team cannot advise you in your individual case.

Registrants who are on parole or probation should follow all parole and probation orders related to their sex offender registration.

 

Does II is designed to address many of the most serious burdens placed on registrants by the old law. Because a class was certified, all registrants will be covered by the decisions in Does II.

Now that the state has passed a new SORA, we are actively working out how to challenge the new law. We do not think the new law is constitutional and believe that it does little to fix the problems with Michigan’s registry. It takes time to develop a strong legal strategy, so we will provide updates as they are available. Registrants who file individual lawsuits challenging SORA can make it more difficult for us to challenge SORA for everyone. If you are considering filing a lawsuit against the new law, we strongly urge you to contact us in advance by email at intern@aclumich.org or call 231-590-1602, and we will get back to you as soon as we can.