I. BASIC FACTS ABOUT THE DOES II LAWSUIT
 

What is the Does v. Snyder II lawsuit?

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.

 

What are the claims in Does II?

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 April 12, 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.

What is a class action lawsuit?

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. 

 

What has happened?

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 April 12, 2011. 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.

The ACLU has now asked the court for a final judgment. As a reminder, because the Does II lawsuit is against the old SORA, the final judgment will not address the new law. Rather, the ACLU is asking the court to prevent the state from prosecuting people for any past SORA violations (generally from before March 24, 2021, or before notice was received under the new law), under the unconstitutional portions of the old law.

 

Does this litigation affect individuals who do not live in Michigan?

Generally no, unless the other state’s registration requirements are tied to registration in Michigan as a result of a Michigan conviction. This lawsuit is a challenge to Michigan’s registry. It does not challenge registries in other states, each of which has its own separate and distinct SORA statute. Some states’ registries make registration requirements dependent on a person’s registration requirements in the state of conviction. Therefore, for some people living in other states who have Michigan convictions, this lawsuit could affect their SORA obligations.  

 

Who are the lawyers in the case?

The case is being litigated by the American Civil Liberties Union of Michigan (ACLU) and the University of Michigan Clinical Law Program (MCLP) – the attorneys who litigated Does I – and the Oliver Law Group, a firm that specializes in class action litigation.
 

What has Michigan done in response to this lawsuit?

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. 

 

What should registrants do now?

We recommend that all registrants stay SORA-compliant while we await a ruling in Does II and explore our options to challenge the new law. State criminal courts are not bound by federal appellate decisions (except for U.S. Supreme Court decisions). It is not yet entirely clear how Michigan state courts will apply the appellate and district court decisions in Does I and Does II. We strongly recommend full compliance to avoid criminal charges or other consequences. 
 

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.

 

What does DOES II mean for individual lawsuits challenging SORA?

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.