We have challenged Michigan’s Sex Offenders Registration Act (SORA) for almost a decade. In response to repeated rulings that an old version of the law was unconstitutional, the state passed a new SORA, which went into effect on March 24, 2021. We believe that this new law, which is very similar to the old law, has done little to fix the constitutional problems with Michigan’s registry.
On February 2, 2022, we filed Does v. Whitmer (Does III), No. 22-cv-10209 (E.D. Mich.), challenging the new SORA as unconstitutional. Specifically, SORA fails to provide for individual review or an opportunity for removal, forcing tens of thousands of people, including people who didn’t even commit a sex offense, to be branded as sex offenders and subjected to extensive, and in most cases life-long restrictions, without any consideration of their individual circumstances, which is a violation of their due process and equal protection rights. The complaint also challenges SORA as imposing unconstitutional retroactive punishment, including by retroactively extending the registration terms of thousands of people to life.
Expert reports filed with the case explain that Michigan’s registry is counter-productive: because registration makes it more difficult for people to find housing, employment and family support — the key factors in preventing recidivism—the registry makes the public less safe.
In May 2022, the judge certified a class action and appointed our litigation team as class counsel. That means that everyone who is on Michigan’s registry is automatically part of the case.
The court also certified several subclasses. Decisions about a subclass will automatically apply to all registrants who meet the definition for the subclass. You may or may not be in a subclass, and you could be in more than one subclass. The subclasses have specific legal claims. The subclasses are:
- Pre-2011 ex post facto subclass: people required to register based on offenses from before July 1, 2011.
- Retroactive extension of registration subclass: people who were retroactively required to register for life.
- Barred from petitioning subclass: people who have been on the registry 10 years and meet certain criteria for petitioning but cannot petition for removal after 10 years (usually because they are Tier II or III registrants, or are juveniles).
- Non-sex-offense subclass: people who are the registry but did not commit a sex offense.
- Plea bargain subclass: people who pled guilty and were retroactively subjected to SORA even though it didn’t exist at the time of their plea, and people whose registration terms were extend beyond those in effect at the time of the plea.
- Post-2011 subclass: people required to register based on offenses on or after July 1, 2011.
The exact legal definitions of the subclasses — which is what determines whether you are part of a subclass — are in the class certification order.
Over the summer of 2022, we also briefed two major motions.
First, we requested a preliminary injunction on several claims. If a preliminary injunction is granted, it will give class members temporary relief while the case is being litigated. Because these cases take years to litigate, we sought a preliminary injunction on the claims where temporary relief could have the most impact and where preliminary relief before final judgment is appropriate. (We have other claims on which we did not seek preliminary relief that could provide relief at a later point.)
The claims for which we sought preliminary relief are:
- Ex Post Facto Claim – that SORA 2021 is punishment and cannot be retroactively applied to pre-2011 registrants.
- Retroactive Extension of Registration to Life Claim – that registry obligations cannot be retroactively extended to last for life.
- Unequal Opportunity to Petition Claim – that procedures currently available to Tier I registrants to petition for removal from the registry should apply to all registrants who meet the same eligibility criteria.
- First Amendment Compelled Speech Claim – that forcing registrants to report information compel them to speak in violation of their First Amendment rights.
- Non-Sex Offense Claim – that it is unconstitutional to require people who did not commit a sex offense to register as sex offenders.
- First Amendment Compelled Admission Claim – that registrants cannot be forced to sign a form saying they understand SORA. (This form is used in prosecutions against registrants for SORA violations.)
Second, the state moved to dismiss the entire case, including both the claims described above and our other claims.
The Court concluded further development of the record was appropriate before ruling on either our claims or the issues raised in the state’s motion to dismiss. The case was moved into a discovery phase where both sides will have the opportunity to gather additional facts and evidence.
In March 2023, we filed a motion to amend the initial complaint to add another claim to the case focused on people with out-of-state convictions.
- Non-Michigan Conviction Claim: Registrants with non-Michigan convictions are subject to harsher registration requirements than in-staters, and receive no notice or opportunity to be heard in violation of their due process and equal protection rights.
The Court granted our request to amend the complaint, and also certified an additional subclass:
- Non-Michigan offense subclass: people who are required to register based on a non-Michigan conviction or adjudication.
During the discovery phase of the case, we gathered significant facts and evidence. We were able to obtain data for the class, which experts then analyzed for a report showing that most common myths about registrants are wrong.
The Court then ordered both parties to submit motions for summary judgment, meaning we will argue that there is no dispute about the material facts in the case, and we are entitled to win as a matter of law. On October 2, 2023, we submitted our Motion for Summary Judgment along with a comprehensive Statement of Facts. We filed a response to the State’s motion for summary judgment and fact statement on December 29, 2023.
We expect briefing on these motions to conclude in mid-January 2024.
You can find the documents associated with the case below.