The federal district court declared unconstitutional, and enjoined enforcement of, four provisions of the Michigan’s Sex Offender Registration Act in Doe v. Snyder, __F. Supp. 3d (#2:12-CV-11194, decided 3-31-15).

First, M.C.L. 28.725(1)(f) (requiring a SORA registrant to “report in person and notify the registering authority . . . immediately after . . . establish[ing] any electronic mail or instant message address, or any other designations used in internet communications or postings[]”) and M.C.L. 28.727(1)(i) (requiring a registrant to report “[a]ll electronic mail addresses and instant message addresses assigned to . . . or routinely used by the individual”) are unconstitutionally overbroad. “[W]hile SORA’s internet reporting provisions serve the significant governmental interest of protecting minors and investigating sexual crimes, . . . ambiguity in the reporting requirements and the requirement to report ‘in person’ render the provisions not narrowly tailored and, therefore, unconstitutional.”

Second, M.C.L. 28.734 and M.C.L. 28.735, which “make[] it a crime for a registrant to work, loiter, or reside within a student safety zone[,]” are unconstitutionally vague because “registrants are forced to choose between limiting where they reside, work, and loiter to a greater extent than is required by law or risk violating SORA.” “SORA does not provide sufficiently definite guidelines for registrants and law enforcement to determine from where to measure the 1,000 feet distance used to determine the exclusion zones, and neither the registrants nor law enforcement have the necessary data to determine the zones even if there were a consensus about how they should be measured[;]” additionally, “SORA’s present definition of ‘loiter’ is sufficiently vague as to prevent ordinary people using common sense from being able to determine whether [the p]laintiffs are, in fact, prohibited from engaging in the conduct from which [they] have refrained.”

Third, M.C.L. 28.727(1)(h), requiring a registrant to report “[a]ll telephone numbers registered to . . . or routinely used by the individual[,]” is unconstitutionally vague because “the commonly accepted meaning of the term[] . . . ‘routinely’ [does] not provide sufficient guidance to law enforcement or registrants” to determine “when the reporting requirements are triggered.”

Lastly, M.C.L. 28.725(1)(g) (requiring a registrant to “report in person and notify the registering authority . . . immediately after . . . [t]he individual purchases or begins to regularly operate any vehicle[]”) and M.C.L. 28.727(1)(j) (requiring a registrant to report “any motor vehicle, aircraft, or vessel owned or regularly operated by the individual”) are unconstitutionally vague because “the commonly accepted meaning of the term[] ‘regularly’ . . . [does] not provide sufficient guidance to law enforcement or registrants” to determine “when the reporting requirements are triggered.”

(Editor’s note:  Case summary provided by the Michigan Judicial Institute.  The Attorney General’s Office will be appealing this decision and the ACLU will be filing a cross-appeal.  Follow the case developments by visiting the ACLU website at: http://www.aclumich.org/ SORAinfo. There you will find additional resources regarding the implications of this opinion, including a FAQ Fact Sheet for Registrants and a Legislative Fact Sheet for practitioners).

Article published in Criminal Defense Newsletter, May 2015, Volume 38, Issue 8. For subscription information, contact Heather Waara at heather@sado.org.

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