Opinion
No. 17-10601
02-28-2020
JEFFREY T. PRICE, Plaintiff, v. DON EDWARDS, ET AL., Defendants.
District Judge Nancy G. Edmunds
REPORT AND RECOMMENDATION
On February 24, 2017, Plaintiff Jeffrey Price filed a civil complaint in this Court against Richard Snyder (then-Governor of the State of Michigan), Kristie Etue (Director of the Michigan State Police), Don Edwards (Montmorency County Sheriff), and Vicki P. Kundinger (Montmorency County Prosecutor) in their official capacities only, alleging that he was wrongfully arrested and later forced to move from his own home for violations of the 2006 and 2011 amendments to Michigan's Sex Offender Registration Act ("SORA"), M.C.L. § 28.721 et seq.
The parties eventually settled, but left two issues for the Court's resolution. Proceeding under 28 U.S.C. § 636(b)(1)(B), I recommend (1) that the Court find that Plaintiff' is not required to register under SORA, either for a period of 25 years or for life; and (2) that the Plaintiff is not obligated to pay the annual fees as set out in M.C.L § § 28.725a(6)(b)-(c) and 28.725b(3). I further recommend that the case be dismissed with prejudice, pursuant to the settlement agreement.
I. FACTS
On March 14, 2018, the Court, overruling objections to my Report and Recommendation [ECF No. 32], granted in part the Defendants' motion to dismiss, dismissing Plaintiff's claim for monetary damages but permitting his claim for declaratory and prospective injunctive relief to go forward. See Opinion and Order [ECF No. 42].
The parties then engaged in settlement discussions, and each side prepared proposed "final judgments" for discussion. On July 17, 2018, Mr. Price and the attorneys for Defendants participated in a telephone conference with the undersigned Magistrate Judge. Agreement on the terms of a settlement was reached, and the parties executed a Memorandum of Understanding that reflected the agreement [ECF No. 53]. A significant part of the settlement was the Defendants' agreement that the 2006 and 2011 amendments to SORA would not apply retroactively to Mr. Price, consistent with the Sixth Circuit's decision in Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016). In addition, the settlement agreement provided that the Court would resolve two specific disputed issues, and that the Court's decision on those issues would be non-appealable:
"In addition to the terms set forth in the proposed judgment, the proposed settlement includes an agreement that the following two issues will be decided by the Court, following briefing by the parties:
(1) Whether Plaintiff's registration under Michigan's SORA would be for a period of 25 years of a period of life;
(2) Whether going forward, the Plaintiff would be obligated to pay the annual fees as set out in M.C.L § § 28.725a(6)(b)-(c) and 28.725b(3).
As part of the settlement, the District Court's decision on these issues will be binding on the parties, and neither party will take an appeal from the District Court's decision."
After the Court denied Plaintiff's motion to withdraw from the agreement, see Opinion and Order, ECF No. 66, the parties filed briefs in support of their respective positions on these issues. ECF No. 68 (Plaintiff's brief) and ECF No. 69 (Defendants' brief).
II. DISCUSSION
Michigan's SORA first went into effect on October 1, 1995, and has since been amended numerous times. People v. Tucker, 312 Mich. App. 645, 655, 879 N.W.2d 906, 912 (2015). On September 6, 2002, Plaintiff was convicted of three counts of second degree criminal sexual conduct, M.C.L. § 750.520c(1)(a) ("CSC II"), based on offenses that were committed on April 15, 2002. In 2002, the operative length of reporting requirement of SORA was contained in M.C.L. § 28.725(7)(b), as amended by 1999 PA 85. Tucker, 879 N.W.2d at 912-13. This section provided for lifetime registration for persons convicted of CSC II.
The lifetime reporting requirements for CSC II convictions were retained in the 2006 SORA amendments. In 2011, SORA was again amended, classifying offenses into three tiers. Tier III offenders were required to register for life, and CSC II is classified as Tier III.
Defendants argue that notwithstanding the inapplicability of the 2006 and 2011 SORA amendments, both under the Sixth Circuit opinion in Does #1-5 and the settlement agreement, Plaintiff is subject to the lifetime registration requirements that were in effect when the offenses were committed in 2002. Citing McClellan v. Judge of Recorder's Court, 201 N.W. 209, 212 (Mich. 1924), they posit that "[u]nder Michigan law, it has long been held that where a court has held a law invalid, it leaves all preceding laws on that subject in force." Defendants' Brief, ECF No. 69, PageID.571-72.
However, on February 14, 2020, Judge Cleland decided Doe, et al. v. Snyder, 2020 WL 758232 (E.D. Mich. Feb. 14, 2020). Doe was a class action case seeking permanent injunctive relief . The Court certified the primary class as "all people who are or will be subject to registration under SORA." Id. The Court certified the following ex post fact sub-class:
"The 'pre-2006' ex post facto subclass' is defined as members of the primary class who committed their offense or offenses requiring registration before January 1, 2006, and who have committed no registrable offense since." Id.
The Plaintiff is a member of both the primary class and the pre-2006 ex post facto subclass.
First, Judge Cleland in Doe found that the Sixth Circuit "invalidat[ed] all portions of the 2006 and 2011 amendments as applied to the members of the ex post facto subclasses." Then, addressing the issue of the severability of those amendments from the rest of the statute, Doe held that "because the 2011 amendments cannot be severed from the statute, the court holds that SORA in toto cannot be applied to any members of the ex post facto subclasses," adding in fn. 9, "The court's determination that the 2011 amendments are not severable means that the entirety of SORA cannot apply to any persons whose crime subjecting them to registration occurred before the enactment of the 2011 amendments."
Addressing specifically the issue of whether a previous version of SORA could be revived, Doe rejected the application of McClellan, ultimately holding that "[u]nless and until decisive action is taken by the Michigan legislature, no provision of SORA may be enforced against members of the ex post facto subclasses."
The injunctive relief granted in the Doe decision is applicable to the Plaintiff, who is a class and sub-class member. It is also dispositive of the two issues that were reserved for determination as part of the settlement agreement in the present case. "No provision" means "no provision." Therefore, Plaintiff is not subject to registration under SORA (be it for 25 years or for life), and is not obligated to pay the annual fees.
III. CONCLUSION
I recommend (1) that the Court find that Plaintiff' is not required to register under SORA, either for a period of 25 years or for life; and (2) that the Plaintiff is not obligated to pay the annual fees as set out in M.C.L § § 28.725a(6)(b)-(c) and 28.725b(3). I further recommend that the case be dismissed with prejudice, pursuant to the settlement agreement.
Any objections to this Report and Recommendation must be filed within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
Within fourteen (14) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than twenty (20) pages in length unless by motion and order such page limit is extended by the court. The response shall address specifically, and in the same order raised, each issue contained within the objections.
s/ R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE Dated: February 28, 2020
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record on February 28, 2020, electronically and/or by U.S. mail.
s/Carolyn M. Ciesla
Case Manager to the
Honorable R. Steven Whalen