Lally v. Whitmer

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MICHAEL ROBERT LALLY, Plaintiff, v. GOVERNOR GRETCHEN E. WHITMER, JOSEPH GASPER, and HEIDI E. WASHINGTON, Defendants.

No. 23-10044

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

November 22, 2023

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (ECF NO. 14)

F. Kay Behm, United States District Judge

This case is before the court on Defendants Governor Gretchen Whitmer, Joseph Gasper, and Heidi Washington's (“Defendants”) motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 14). Plaintiff Michael Lally filed his initial complaint on January 6, 2023, alleging violations of his rights under the Ex Post Facto Provisions of the Constitution of the United States and the Michigan Constitution. (ECF No. 1). Plaintiff alleges, in part, that Defendants violated his constitutional rights by continuing to require him to register under Michigan's Sex Offenders Registration Act (SORA) even after it had been declared unconstitutional and by failing to correct the public record.

(ECF No. 11, PageID.114). This case was initially before District Judge Laurie J. Michelson, but was reassigned to the undersigned on February 6, 2023.

On April 5, 2023, Defendants filed a motion to dismiss Plaintiff's complaint. (ECF No. 6). On April 26, 2023 Plaintiff filed a first amended complaint (FAC) and, as a result, the court terminated Defendants' motion as moot. (ECF Nos. 8, 9). On May 20, 2023, Plaintiff filed his second amended complaint (SAC) pursuant to a stipulated order entered on May 8, 2023. (See ECF No. 10, 11). Defendants then filed the present motion to dismiss Plaintiff's SAC on June 20, 2023. (ECF No. 14). The court held a hearing on November 15, 2023, and both parties participated in oral argument. For the reasons stated below the court GRANTS Defendants' motion.

I. BACKGROUND

A. Michigan's Sex Offenders Registration Act (SORA)

The first version of Michigan's SORA, Mich. Comp. Laws § 28.723 et seq., as enacted in 1994, created a confidential database of individuals convicted of certain sex offenses that could only be accessed by law enforcement. People v. Betts, 507 Mich. 527, 533 (2021). In 1997, the registry was made available for inperson public inspection during business hours and, in 1999, the database was computerized and published online for public access. Id. at 534. The amount and type of information registrants were required to provide to law enforcement changed significantly as part of two key amendments in 2006 and 2011. Id. In 2006, SORA was amended to prohibit registrants from living, working, or loitering within 1,000 feet of a school. Does # 1-5 v. Snyder, 834 F.3d 696, 698 (6th Cir. 2016) (“Does I on appeal”) (citing Mich. Pub. Acts 121, 127 (2005)). In 2011, SORA was further amended to categorize registrants into one of three tiers based on their crime of conviction and require registrants to “appear in person ‘immediately' to update information such as new vehicles or ‘internet identifiers.'” Id. Both the 2006 and 2011 amendments applied retroactively to all individuals who were required to register under the Act, and violations carried heavy penalties. Id. (citing Mich. Pub. Act. 46; Mich. Pub. Acts 17, 18 (2011)).

In 2016, a group of registered individuals brought a lawsuit challenging SORA's constitutional validity on a number of grounds, including that its retroactive application amounted to an unconstitutional Ex Post Facto punishment. Id. The district court held, in part, that the retroactive application of SORA did not violate the Ex Post Facto clause. John Does 1-4 v. Snyder, 932 F.Supp.2d 803, 807 (E.D. Mich. 2013) (“Does I”). The Sixth Circuit reversed this decision in part in Does I on appeal, holding “[t]he retroactive application of SORA's 2006 and 2011 amendments to Plaintiffs is unconstitutional and it must therefore cease.” Does I on appeal, 834 F.3d at 706. However, the Sixth Circuit did not address any of the other constitutional issues raised by the plaintiffs in Does I and, shortly after the Sixth Circuit's decision in Does I on appeal, a second set of plaintiffs filed a lawsuit challenging SORA on those same constitutional grounds. Doe v. Snyder, 449 F.Supp.3d 719 (E.D. Mich. 2020) (“Does II”). Does II held that (1) retroactive application of any SORA provision violated the Ex Post Facto Clause; (2) the school-zone provisions and some reporting requirements were unconstitutionally vague; and (3) some of the reporting requirements violated the First Amendment. Id. In 2021, the Michigan Supreme Court similarly held that “the 2011 SORA, when applied to registrants whose criminal acts predated the enactment of the 2011 SORA amendments, violates the constitutional prohibition on ex post facto laws.” Betts, 507 Mich. at 574.

Following the decisions in Does I, Does I on appeal, Does II, and Betts, yet another group of Michigan sex offenders filed a class-action lawsuit challenging additional aspects of SORA. Does v. Whitmer, 69 F.4th at 304 (“Does 2.5”). The plaintiffs sued each of the defendants in their individual capacities, arguing that they “knew that the invalidated provisions were unconstitutional, but failed to stop their subordinates from enforcing them against the plaintiffs.” Id. The Sixth Circuit, however, held that the plaintiffs had failed to state a claim of supervisory liability against the defendants. Id. at 309.

B. Facts of Plaintiff's Case

On October 21, 1992, Plaintiff entered a plea of no contest to one count of Criminal Assault Less than Murder, pursuant to Mich. Comp. Laws § 750.84(1)(a), and one count of Criminal Sexual Conduct 2nd Degree (CSC II), pursuant to Mich. Comp. Laws § 750.520(c)(1)(f). (ECF No. 11, PageID.115). Pursuant to Plaintiff's plea deal, he was sentenced on February 8, 1993 to 60 months on the Criminal Assault Less than Murder conviction and 60 months on the CSC II conviction, to be served concurrently, along with 38 days credit for time served. Id., PageID.116. At the time of Plaintiff's sentencing, SORA was not yet in effect and, therefore, it was not mentioned in Plaintiff's Judgment of Guilt, sentencing documents, or at the sentencing hearing. Id. However, on November 22, 1995, Plaintiff alleges he was “verbally compelled to register under SORA as a condition of parole relief,” and was told he would be required to continue his registration for 25 years and participate in a class prepared by the MDOC. Id., PageID.117. This 25-year requirement meant that Plaintiff would be required to register with SORA from November 22, 1995 until November 22, 2020. Id., PageID.119.

In 2008, Plaintiff moved from Michigan to Princeton, Texas. Id., PageID.118. He “notified the Michigan State Police SORA office of his intention and then immediately registered under the Texas SORA with the local Sheriff's Department in Collins, Texas” upon his arrival. Id. In 2021, Plaintiff moved back to Jackson, Michigan and “immediately registered with the Michigan State Police Department on September 20, 2021.”^[1] Id., PageID.119. He alleges that, at the time of his registration in 2021, he was not notified that the Sixth Circuit and the Michigan Supreme Court had held that SORA was unconstitutional or that he had already completed his 25-year registration requirement. Id.

Plaintiff now argues that each of the individual Defendants knew or should have known by 2021 that SORA was unconstitutional and they had the duty to: (a) “remove Plaintiff from the Michigan SORA registry and eliminate every public record of his unlawful registration from every database,” (b) “identify other governmental and nongovernmental entities that relied on Michigan's unconstitutional registration of Plaintiff as a basis for listing him on their publicly available websites,” (c) “take all reasonable steps, including the filing of litigation, to require those entities to eliminate all public access to Plaintiff's Michigan registration,” and (d) “timely inform Plaintiff” that each of these duties had been honored. Id., PageID.122. Plaintiff seeks declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202 and attorney fees under 42 U.S.C. § 1983. Id., PageID.124, 126.

II. STANDARD OF REVIEW

A motion brought pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges a federal court's jurisdiction over the subject matter of the suit. Fed.R.Civ.P. 12(b)(1). Allegations that a defendant is entitled to Eleventh Amendment immunity can be brought under this section as a motion to dismiss for lack of subject matter jurisdiction. See Skidmore v. Access Grp., Inc., 149 F.Supp.3d 807, 809 (E.D. Mich. 2015) (citing O'Bryan v. Holy See, 556 F.3d 361, 375 (6th Cir. 2009)) (“A claim of sovereign immunity challenges the court's subject matter jurisdiction and, as such, is properly raised under Federal Rule of Civil Procedure 12(b)(1)). Allegations that a plaintiff lacks standing may also be brought as a motion to dismiss under this section. Stalley v. Methodist Healthcare, 517 F.3d 911, 916 (6th Cir. 2008) (“We review de novo a district court's dismissal of a case for lack of standing - lack of subject matter jurisdiction - under Fed.R.Civ.P. 12(b)(1).”).

Rule 12(b)(1) motions fall into two categories: facial attacks and factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack is a “challenge to the sufficiency of the pleading itself” whereas a factual attack “is a challenge to the factual existence of subject matter jurisdiction.” Id. In this case, Defendants bring a facial attack and, therefore, the court must “accept[] the material allegations in the complaint as true and construe[] them in the light most favorable to the nonmoving party.” Id.

III. ANALYSIS

Defendants argue Plaintiff's case must be...