Roe v. Snyder

240 F.Supp.3d 697

Mary ROE, Plaintiff,

v.Richard D. SNYDER, et al., Defendants.

Case No. 16–cv–13353

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

Signed March 3, 2017

Daniel S. Korobkin, Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Detroit, MI, Miriam J. Aukerman, American Civil Liberties Union of Michigan, Grand Rapids, MI, Paul D. Reingold, University of Michigan, Ann Arbor, MI, for Plaintiff.

Erik A. Grill, Michigan Department of Attorney General, Public Employment, Elections and Tort, Lansing, MI, Mark Liss, Royal Oak City Attorney's Office, Royal Oak, MI, Brandon K. Buck, Oakland County Corporation Counsel, Troy, MI, Keith J. Lerminiaux, Oakland County Corporation Counsel, Pontiac, MI, Davidde A. Stella, Wayne County Corporation Counsel, Detroit, MI, for Defendants.

OPINION AND ORDER DENYING DEFENDANTS' MOTION TO STAY (Dkt. 26); DENYING DEFENDANT WORTHY'S MOTION TO DISMISS (Dkt. 33); AND GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (Dkt. 34)

MARK A. GOLDSMITH, United States District Judge

This case concerns Michigan's Sex Offender Registration Act ("SORA"), Mich. Comp. Laws § 28.721 et seq. Recently, the Sixth Circuit issued Does # 1–5 v. Snyder , 834 F.3d 696 (6th Cir. 2016), reh'g denied , (Sept. 15, 2016), which held that certain provisions of SORA, added by amendment, cannot be applied retroactively without violating the Ex Post Facto Clause of the U.S. Constitution. One registrant, Mary Roe, moves for a preliminary injunction that will enjoin the enforcement of these amendments against her (Dkt. 34). Although Does # 1–5 answers the underlying legal question, it is uncontested that the Does # 1–5 only binds state prosecutorial authorities as to the named plaintiffs in that case. For the reasons that follow, this Court declines to stay or dismiss the case and grants Roe's motion.

I. BACKGROUND

SORA was amended, in pertinent part, in 2006 and 2011. The 2006 Amendment prohibits registrants from living, working, or loitering within 1000 feet of a school. See 2005 Mich. Pub. Acts 121, 127. The 2011 Amendment requires all registrants to appear in person "immediately" to update information such as new vehicles or "internet identifiers" (e.g., a new email account), or to provide travel plans that would take them away from their registered residence for more than seven days. See 2011 Mich. Pub. Acts 17, 18. The 2011 Amendment also establishes a three-tiered, public classification of registrants, assigning a registrant's tier based in part on his or her crime of conviction, and it retroactively lengthens the time that one must remain on the registry based upon one's tier. Id.

On August 25, 2016, the Sixth Circuit issued Does # 1–5 v. Snyder . That case held that the retroactive imposition of the 2006 and 2011 Amendments on those who were convicted before the Amendments' enactment amounts to "a criminal penalty" and, therefore, violates the Ex Post Facto Clause. In light of that holding, it declined to reach the issue—decided by the district court per the Honorable Robert Cleland in favor of the plaintiffs, see Doe v. Snyder , 101 F.Supp.3d 672, 684 (E.D. Mich. 2015) —whether the 1000–foot school zone law was void for vagueness.

The instant Plaintiff, Mary Roe, was convicted in 2003 of having sex with "an underage teen" when she was 19. See Am. Compl. ¶ 3 (Dkt. 20). She became subject to the version of SORA in effect at that time. Id. She served two and a half years in prison. Id. ¶ 42. Subsequently, she became subject to the 2006 and 2011 Amendments when they became effective. Id. ¶ 49.

Roe is employed as the clinical director of a residential drug treatment facility, located in Wayne County, and has been for the past eight years. Id. ¶ 7. Pursuant to SORA, she routinely reported her employer's address to authorities since becoming employed there. Id. ¶ 51. On September 9, 2016—after the August 25, 2016 issuance of Does # 1–5 , but before rehearing was denied—a Royal Oak police officer (Officer Kevin Cavanaugh) informed Roe that her place of employment was within 1000 feet of a school in violation of the 2006 Amendment, Mich. Comp. Laws § 28.734(1)(a), and that she must resign immediately or face prosecution for a SORA violation. See Am. Compl. ¶¶ 6, 8. Cavanaugh indicated at that time that he was aware of Does # 1–5 . Id. ¶ 57. At their meeting, Plaintiff told Cavanaugh that her research indicated that her workplace was 1,056 feet from a school; Cavanaugh said that his own research indicated that the distance was less than 1,000 feet. Id. ¶¶ 63–64.

Shortly thereafter, SORA's publicly accessible registry listed Roe as "Non-compliant, Employment Violation." Id. ¶¶ 58–60; see also Redacted Registry Page for Mary Roe, Ex. 3 to Am. Compl. (Dkt. 20–4). Thereafter, the Royal Oak police department, per a stipulation with Roe, agreed to take affirmative action to restore her status to "compliant," see 12/12/16 Stip. & Order (Dkt. 45), and Roe now admits that she is listed as "compliant" on the public registry, see Pl. Mot. at 5 n.4 (Dkt. 34). Pursuant to that same stipulation, Officer Cavanaugh and Royal Oak Police Chief Corrigan O'Donohue agreed, on behalf of the Royal Oak Police Department, not to refer Roe to any prosecutorial authority for any violation of the Amendments "that occurs before, or within 21 days after, the date of the final disposition of the ex post facto claim" in Does # 1–5 . 12/12/2016 Stip. & Order at 2.¹

Roe claims that Cavanaugh's instruction that she must quit her job violated the holding of Does # 1–5 . Am. Compl. ¶ 9. She further claims that she remains subject to the current iteration of SORA, including its specific restrictions pertaining to reporting and travel, and being branded a "tier III" offender, id. ¶¶ 10, 50, 70–71. Additionally, she claims that, notwithstanding Does # 1–5 , "[i]t is impossible for [her] to identify the areas that are inside and outside these geographic exclusion zones," i.e., the 1000–foot border surrounding schools. Id. ¶ 66. She has never been provided with a map or an explanation of how the distance is to be measured. Id. ¶ 67. Roe argues that the 2006 and 2011 Amendments "are so embedded in the law that they are not severable from the rest of the statute." Id. ¶ 73. Does # 1–5 did not address severability. In the alternative (i.e., if the Amendments are deemed severable), Plaintiff argues that the Amendments cannot be enforced, both because of Does # 1–5 and because of the reasoning behind Judge Cleland's holdings that (i) the 1000–foot "exclusion zones" are void for vagueness and (ii) certain of the registration requirements are void for vagueness. See Am. Compl. ¶¶ 74–77; see also 932 F.Supp.2d 803 ; 101 F.Supp.3d 672.² Roe admits that Judge Cleland's holdings are "not binding," but she claims that they provide "an additional reason why those [1000–foot exclusion] zones cannot be applied" to her. Am. Compl. ¶ 78.

II. ANALYSIS³

A. Motion to Stay

The Sixth Circuit ultimately did not stay its mandate in Does # 1–5 , see 11/23/2016 Mandate, Snyder v. Does # 1–5 , 15–1536 (6th Cir. 2016), and, on December 14, 2016, the Does # 1–5 defendants petitioned for a writ of certiorari in the United States Supreme Court, see Snyder v. Does # 1–5 , 16–768 (U.S. Dec. 15, 2016), which remains pending.

A party seeking to stay proceedings in one case for the resolution of another must "make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to someone else." Landis v. N. Am. Co. , 299 U.S. 248, 255, 57 S.Ct. 163, 81 L.Ed. 153 (1936) ; see also Caspar v. Snyder , 77 F.Supp.3d 616, 644 (E.D. Mich. 2015) ("Where the stay motion is premised on the alleged significance of another case's imminent disposition, courts have considered the potential dispositive effect of the other case, judicial economy achieved by awaiting adjudication of the other case, the public welfare, and the relative hardships to the parties created by withholding judgment.").

Defendants Richard Snyder and Kriste Etue—Michigan's Governor and Director of the State Police, respectively—filed a motion to stay proceedings in this case pending a final judgment in Does # 1–5 (Dkt. 26). Defendant Jessica Cooper, the Oakland County Prosecutor, joined in that motion (Dkt. 27). Their motion asserts that, if certiorari is denied in Does # 1–5 or if the decision is upheld, that "would have application" to Roe's claims in this case. See Mot. to Stay at 5. Similarly, if that decision is reversed, it would resolve "any challenge" brought by Roe. Id. The motion argues that Roe will not be prejudiced by a stay, because there is no genuine threat that she will be prosecuted, and that the instant case is a waste of judicial resources in light of its overlap with Does # 1–5 . Id. at 5–6.

This Court is unpersuaded by these arguments. First, and most importantly, the prejudice argument misapprehends the injury claimed by Roe. She does claim that she fears prosecution for her alleged workplace violation; but she also claims current and ongoing harm caused by SORA's restrictions and being publicly labeled a "tier III" offender. See Am. Compl. ¶¶ 50, 70–71. Roe has, therefore, alleged that a stay will "work damage" to her while waiting for the decision on the certiorari petition in the other case. And Defendants have not alleged any "hardship or inequity in being required to go forward," Landis , 299 U.S. at 255, 57 S.Ct. 163, other than that which might affect this Court. This Court's additional work on this case, however, is not cognizable prejudice to Defendants.

Furthermore, it is not true that a decision upholding Does # 1–5 "would have application" to Roe, nor is it true that a decision overturning Does # 1–5 would resolve "any challenge" brought by Roe. If Does # 1–5 actually controlled any prosecutorial decision concerning Roe—as opposed to just the plaintiffs in...