People of Michigan v. Nicholas James Patton

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
August 2, 2018
Plaintiff-Appellee, 9:00 a.m.
v No. 341105
Berrien Circuit Court
NICHOLAS JAMES PATTON, LC No. 2017-001164-FH
Defendant-Appellant.
Before: RONYANE KRAUSE, P.J., and MARKEY and RIORDAN, JJ.
MARKEY, J.
Defendant appeals by leave granted the trial court’s order denying his motion to dismiss
two counts of violating the sex offenders registration act (SORA), MCL 28.721 et seq., on the
basis that MCL 28.727(1)(h) (requiring reporting “[a]ll telephone numbers registered to the
individual or routinely used by the individual”), and MCL 28.727(1)(i) (requiring reporting “[a]ll
electronic mail addresses and instant message addresses assigned to the individual or routinely
used by the individual”), were unconstitutionally vague. Following a preliminary examination,
defendant was bound over to circuit court. After briefing and argument of the parties, the trial
court ruled that the SORA requirements at issue are not unconstitutionally vague. The trial court
also found defendant’s ex post facto challenge meritless and issued an order denying defendant’s
motion to dismiss. We affirm.
Defendant is subject to the requirements of SORA based on his conviction by guilty plea
on November 18, 2009, to second-degree criminal sexual conduct, MCL 750.520c(2)(b), alleged
to have occurred on June 26, 2009. According to testimony at the preliminary examination,
while defendant was on parole for that offense, his parole agent, Jeanice McConomy, received
information that defendant had a cellular telephone that he was using to access the Internet,
which was a violation of his parole conditions. During a home visit by McConomy on February
16, 2017, defendant initially denied having a cellular telephone. A search of defendant’s person,
however, revealed a cellular telephone in defendant’s pocket that defendant then admitted was
his. Defendant admitted that the cellular telephone could access the Internet, but he claimed that
he only accessed the Internet to play games. Defendant denied accessing the Internet on the
cellular telephone to visit pornographic websites. Defendant also admitted to McConomy that he
did not register the cellular telephone or the cellular telephone number as required by SORA,
although he did update his address and his employment. McConomy seized the cellular
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telephone and contacted police to arrest defendant for a parole violation. McConomy turned the
cellular telephone over to Detective Cory Peek of the Berrien County Sheriff’s Department.
Detective Peek was received at the preliminary examination as an expert witness
qualified in the area of forensic examination of electronic devices. Detective Peek confirmed
that the cellular telephone was a “smart phone” that was capable of accessing the Internet. He
used a program called Cellebrite to extract information from the cellular telephone. Detective
Peek testified that he found “selfies” photographs of defendant on the cellular telephone. He also
discovered pornographic pictures, several hundred e-mails—some of which were from dating
websites—and an e-mail account with the address Littlenick642@yahoo.com with the name
Nicholas Patton associated with it. Detective Peek also discovered a second e-mail address,
Fearlove642@yahoo.com. After this testimony, the trial court, sitting as examining magistrate,
bound defendant over to circuit court on both counts.
In defendant’s motion to dismiss the charges, he claimed that the SORA provisions that
mandated his registration of cellular telephone numbers registered to him or routinely used by
him and of any e-mail accounts assigned to him or routinely used by him violated his state and
federal due-process rights because the mandates were unconstitutionally vague. He also claimed
that the SORA provisions were unconstitutional because they violated the Ex Post Facto Clauses
of the federal and state Constitutions.
The prosecution argued that it was not relying on that part of the statutory prohibition of
“routinely used” that this Court recently found unconstitutionally vague. See People v Solloway,
316 Mich App 174, 187; 891 NW2d 255 (2016). Rather, the prosecution argued that the phrase
“routinely used” could be judicially severed from the statute to save it from constitutional
infirmity. Thus, the prosecution argued that it was only proceeding under the “register[ed] to”
and “assigned to” language of MCL 28.727(1)(h) and (i). The prosecution also argued that the
SORA provisions did not violate the Ex Post Facto Clauses because SORA was not punitive.
They are part of a civil remedy or protection.
The trial court agreed with the prosecution’s arguments, noting “that particular subsection
of the statute should not be tossed out because one portion was found to be unconstitutionally
vague. So I have no problem with allowing the prosecution to go forward on the portion of the
statute . . . that is not unconstitutionally vague.” The trial court also concluded that the statute
was not an unconstitutional ex post facto law because the SORA provision that defendant was
accused of violating did not reveal a criminal purpose. Accordingly, the trial court entered its
order denying defendant’s motion to dismiss. Defendant now appeals by leave granted.
I. STANDARD OF REVIEW
A trial court’s decision regarding a motion to dismiss is reviewed for an abuse of
discretion, People v Herndon, 246 Mich App 371, 389; 633 NW2d 376 (2001), which occurs
when the court chooses an outcome that is outside the range of reasonable and principled
outcomes, People v Bass, 317 Mich App 241, 256; 893 NW2d 140 (2016). This Court reviews
de novo the meaning of a statute, People v Pfaffle, 246 Mich App 282, 295; 632 NW2d 162
(2001), and also reviews de novo constitutional issues, Solloway, 316 Mich App at 184.
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II. DISCUSSION
A. DUE PROCESS
We conclude that the trial court properly severed the unconstitutionally vague phrase
“routinely used” from MCL 28.727(1)(h) and (i). Consequently, the trial court correctly ruled
that the prosecution could continue under the “registered to” and “assigned to” portions of those
SORA requirements that were not unconstitutionally vague. We further hold that the statutory
provisions did not violate the Ex Post Facto Clauses of the federal and state Constitutions.
Defendant was charged with violating the reporting requirements of SORA under
MCL 28.727(1)(h) and (i), which state, in pertinent part:
(1) . . . All of the following information shall be obtained or otherwise
provided for registration purposes:
* * *
(h) All telephone numbers registered to the individual or routinely used by
the individual.
(i) All electronic mail addresses and instant message addresses assigned to
the individual or routinely used by the individual and all login names or other
identifiers used by the individual when using any electronic mail address or
instant messaging system.
Our Supreme Court in People v Moreno, 491 Mich 38, 45; 814 NW2d 624 (2012),
described pertinent principles of statutory construction applicable in all cases:
When interpreting statutes, this Court must ascertain and give effect to the
intent of the Legislature. The words used in the statute are the most reliable
indicator of the Legislature’s intent and should be interpreted on the basis of their
ordinary meaning and the context within which they are used in the statute. In
interpreting a statute, this Court avoids constructions that would render any part
of the statute surplusage or nugatory. [Id. (citations and quotation marks
omitted).]
Defendant first argues that MCL 28.727(1)(h) and (i) are unconstitutionally vague under
the due process clauses of the United States and Michigan’s Constitution. US Const, Amend
XIV; Mich Const 1963, art 1, § 17. When reviewing a constitutional challenge to a statute, this
Court must construe it to be constitutional unless its unconstitutionality is clearly apparent.
Solloway, 316 Mich App at 184. A statute may be unconstitutionally vague if “(1) it does not
provide fair notice of the conduct proscribed, (2) it confers on the trier of fact unstructured and
unlimited discretion to determine whether an offense has been committed, or (3) its coverage is
overly broad and impinges on First Amendment Freedoms.” People v Vronko, 228 Mich App
649, 652; 579 NW2d 138 (1998). A statute is not unconstitutionally vague when “the meaning
of the words in controversy can be fairly ascertained by reference to judicial determinations, the
common law, dictionaries, treatises, or their generally accepted meaning.” Id. at 653. Further, a
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statute may survive constitutional scrutiny when its words have more than one meaning, and a
statute need not define an offense with mathematical precision. People v Lawhorn, 320 Mich
App 194, 200; 907 NW2d 832 (2017). “The proper inquiry is not whether the statute may be
susceptible to impermissible interpretations, but whether the statute is vague as applied to the
conduct” alleged in the instant case. Vronko, 228 Mich App at 652.
The Legislature has specifically provided for the use of severability when any part of a
statute is determined to be invalid if appropriate to avoid rendering the remaining parts of the
statute meaningless. MCL 8.5, which states:
In the construction of the statutes of this state the following rules shall be
observed, unless such construction would be inconsistent with the manifest intent
of the legislature, that is to say:
If any portion of an act or the application thereof to any person or
circumstances shall be found to be invalid by a court, such invalidity shall not
affect the remaining portions or applications of the act which can be given effect
without the invalid portion or application, provided such remaining portions are
not determined by the court to be inoperable, and to this end acts are declared to
be severable.
In this case, defendant argues, as he did at his motion to dismiss, that on the basis of this
Court’s holding in Solloway, 316 Mich App at 187, this Court should hold that the part of SORA
defendant was charged with violating should be held unconstitutionally vague. The prosecution
responded to defendant’s motion to dismiss and now argues that Solloway is distinguishable
because the Solloway Court only addressed the words “routinely used” in the statute, not the
terms “registered to” or “assigned to” used in MCL 28.727(1)(h) and (i). The prosecution argues
that the charges against defendant are based only on the “registered to” and “assigned to”
portions of the statutory prohibition, not the alternative “routinely used” language, and that the
trial court properly exercised its authority to sever the invalid portions of the statute from the
valid remainder to allow the prosecution against defendant to continue. Like the trial court, we
agree with the prosecution’s argument.
In Solloway, the defendant was on probation because of a conviction of fourth-degree
criminal sexual conduct and was required to be registered under SORA. Solloway, 316 Mich
App at 179. The police searched the defendant’s house and found a cellular telephone that was
registered in a relative’s name. Id. The defendant also admitted that he had an e-mail account in
his father’s name. Id. at 180. The Solloway Court found persuasive the case of Doe v Snyder,
101 F Supp 3d 672, 688-713 (ED Mich, 2015),1 which addressed, inter alia, the phrase
1
Opinions of the lower federal courts and foreign jurisdictions are not binding but may be
considered persuasive. See Abela v Gen Motors Corp, 469 Mich 603, 606-607; 677 NW2d 325
(2004); People v Campbell, 289 Mich App 533, 535; 798 NW2d 514 (2010).
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“routinely used” in MCL 28.727(1)(h) and (i). Solloway, 316 Mich App at 187. After discussing
Doe, this Court held:
In this case, the phrase “routinely used,” as found in MCL 28.727(1)(h)
and (i) renders those statutory provisions vague. We find the analysis in Doe, 101
F Supp 3d at 688-713, persuasive. Given the dictionary definition of “routinely,”
as discussed in that case, id. at 688, it is evident that law enforcement officers and
judges could hold different views of how often a telephone number or e-mail
address must be used by an individual to be “routinely used” under the statute.
We thus agree with the holding in Doe and find that the provisions under which
defendant was convicted are unconstitutionally vague. Therefore, defendant’s
convictions for failing to comply with SORA are vacated. [Id. at 187.]
Thus, the Solloway Court only held unconstitutionally vague the alternative part of MCL
28.727(1)(h) and (i) requiring registration of “telephone numbers” and “electronic mail addresses
and instant message addresses” that are “routinely used” by the person subject to the
requirements of SORA. The Solloway Court did not address or hold unconstitutionally vague the
parts of MCL 28.727(1)(h) and (i) requiring registration of “telephone numbers” and “electronic
mail addresses and instant message addresses” that are “registered to” or “assigned to” the
person subject to the requirements of SORA. This view of Solloway is buttressed by the fact that
the Court found Doe persuasive, which also only addressed the “routinely used” alternative
language of MCL 28.727(1)(h) and (i). Moreover, our interpretation is further supported by the
fact that the evidence against the defendant, in Solloway consisted of a cellular telephone that
was registered to a relative, not the defendant, and an e-mail account that was registered to the
defendant’s father, not to the defendant. Thus, the prosecution in Solloway could only proceed
against the defendant under the “routinely used” alternative language of MCL 28.727(1)(h) and
(i). Consequently, Solloway is distinguishable from the facts of the instant case because the
evidence showed that defendant personally purchased the cellular telephone; there were selfies of
defendant on the cellular telephone, and at least one of the e-mail addresses found on the cellular
telephone was registered in defendant’s name. The present case is in direct contrast to the
prosecution in Solloway, which relied entirely on the “routinely used” alternative language of
MCL 28.727(1)(h) and (i), and the evidence only showed that a telephone belonged to a family
member and an e-mail account was registered in the name of the defendant’s father.
This reasoning is further supported by the language of the statute. It uses the term “or” in
separating the phrases “registered to” and “assigned to” from the phrase “routinely used.” MCL
28.727(1)(h) and (i). The Legislature’s use of the disjunctive term “or” evidences that there are
two ways to violate the statute. See People v Kowalski, 489 Mich 488, 499; 803 NW2d 200
(2011). That is, defendant could violate MCL 28.727(1)(h) by failing to register a telephone
number registered to him; he could separately violate the statute by failing to register a telephone
number that he routinely used. The same analysis applies to subsection (i) regarding e-mail and
instant message addresses. To conclude that this Court’s decision in Solloway applied to all the
provisions of MCL 28.727(1)(h) and (i) despite being separated by the disjunctive term “or”
would render the portions of the statute stating “registered to” and “assigned to” “surplusage or
nugatory.” Moreno, 491 Mich at 45. It would also run contrary to the Legislative directive to
sever invalid parts of a statute from the remainder whenever possible. MCL 8.5.
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The trial court in this case properly exercised its authority to sever invalid parts of the
statute by finding the “routinely used” portion of MCL 28.727(1)(h) and (i) were
unconstitutionally vague but that the remaining portions of the statute relating to “registered to”
or “assigned to” regarding phone numbers and e-mail and instant message accounts were valid.
See MCL 8.5; People v McMurchy, 249 Mich 147, 158; 228 NW 723 (1930) (When one part of a
statute is held unconstitutional, the remainder of the statute remains valid unless all parts of the
statute are so interconnected that the Legislature would likely not have passed the one part
without the other.). We conclude that the trial court’s ruling was not error. Only a portion of
MCL 28.727(1)(h) and (i) is unconstitutionally vague, Solloway, 316 Mich App at 187, and the
invalid portion articulates a separate, alternative method of violating the statute. The invalid
portion is not so interconnected with the other portions as to render them also invalid. Thus, the
trial court properly severed the invalid portions and saved the remainder. So, we conclude that
the remaining portions of the statute, including the “registered to” and “assigned to,” under
which the present prosecution is brought, are constitutionally valid. See MCL 8.5; McMurchy,
249 Mich at 158.
Moreover, Merriam-Webster’s dictionary defines “registered” as “having the owner’s
name entered” and “recorded as the owner of.” Merriam-Webster’s Collegiate Dictionary (11th
ed). The same source defines “assigned” as “to consider to belong to.” Id. When one applies
these definitions to the terms of MCL 28.727(1)(h) and (i), it is clear that an offender subject to
the SORA reporting requirements must report any telephone number that he is the “recorded
owner of” or that which his name is “entered” as the owner. In this case, as discussed above,
defendant admitted that he personally purchased the cellular telephone with money he had
earned. Thus, defendant was the recorded owner of the cellular telephone number or had his
name entered as the owner of the cellular telephone number. Also, defendant must report any e-
mail addresses “consider[ed] to belong to” him. In this case, there was at least one e-mail
address specifically registered to defendant by name, which must be considered to belong to
defendant.
When the terms of MCL 28.727(1)(h) and (i) on which the prosecution in this case is
based are considered in light of their common meaning or in consultation with dictionary
definitions, it is clear that they are not unconstitutionally vague. See Solloway, 316 Mich App at
185; see also Vronko, 228 Mich App at 653 (“A statute is not vague if the meaning of the words
in controversy can be fairly ascertained by reference to judicial determinations, the common law,
dictionaries, treatises, or their generally accepted meaning.”). Defendant was provided fair
notice of the conduct proscribed—that he must register any telephone number that he was the
recorded owner of or that his name was entered as the owner of, and he must register any e-mail
address assigned to him that it would be considered to belong to him. The terms at issue did not
provide the trier of fact with unstructured or unlimited discretion to determine whether an
offense had been committed. The trier of fact would need to determine only if defendant were
the owner of or had his name entered as the owner of any telephone numbers or if any e-mail
addresses were considered to belong to defendant.
Finally, the scope of MCL 28.727(1)(h) and (i) as limited by severing “routinely used”
was not overly broad to infringe on defendant’s First Amendment freedoms. The scope of the
statute only applied to telephone numbers owned or entered as being owned by defendant. And
the coverage only applied to e-mail addresses considered to belong to defendant. Considering
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these factors in light of the facts that defendant admitted that the cellular telephone was his, that
he purchased the cellular telephone with his own money from his employment, that there were
selfies of defendant on the cellular telephone, and that at least one e-mail address was directly
linked to defendant by name, we conclude that the trial court correctly ruled that the prosecution
in this case could be continued based on the “registered to” and “assigned to” terms of MCL
28.727(1)(h) and (i) without application of the “routinely used” provisions of the statute. We
hold that because the “registered to” and “assigned to” provisions of MCL 28.727(1)(h) and (i)
are separate, severable provisions, they are not unconstitutionally vague.
B. EX POST FACTO LAW
Defendant next argues that application of MCL 28.727(1)(h) and (i) violated the Ex Post
Facto Clauses of the United States and Michigan Constitutions. US Const, art 1, § 10 states in
relevant part, “No State shall . . . pass any . . . ex post facto Law . . . .” Mich Const 1963, art 1,
§ 10 states, “No bill of attainder, ex post facto law or law impairing the obligation of contract
shall be enacted.”
There are four categories of ex post facto laws: (1) any law that punishes an act that was
innocent when the act was committed, (2) any law that makes an act a more serious criminal
offense than when committed, (3) increases the punishment for a crime committed before the law
was passed, or (4) any law that allows the prosecution to convict a defendant on less evidence
than was required when the act was committed. People v Callon, 256 Mich App 312, 317; 662
NW2d 501 (2003), citing Calder v Bull, 3 US 386, 390; 1 L Ed 648; 3 Dall 386 (1798). “All ex
post facto laws share two elements: (1) they attach legal consequences to acts before their
effective date, and (2) they work to the disadvantage of the defendant.” Id at 318, citing Weaver
v Graham, 450 US 24, 29; 101 S Ct 960; 67 L Ed 2d 17 (1981). The crucial question in
determining whether a law violates the Ex Post Facto Clause “ ‘is whether the law changes the
legal consequences of acts completed before its effective date.’ ” Id., quoting Carmell v Texas,
529 US 513, 519-520; 120 S Ct 1620; 146 L Ed 2d 577 (2000), and Weaver, 450 US at 31.
In this case, defendant originally became subject to SORA after his conviction for
second-degree criminal sexual conduct in 2009. MCL 28.727(1)(h) and (i) were added to SORA
by 2011 PA 18 and became effective July 1, 2011. The 2011 amendments required defendant,
who was already subject to SORA, to comply with its new requirements. 2011 PA 17 and 18.
Thus, the 2011 amended SORA requirements retroactively applied to defendant. See Does #1-5
v Snyder, 834 F3d 696, 698 (CA 6, 2016). So, the question becomes whether the retroactive
application of new SORA requirements violates the Ex Post Facto Clauses of the United States
and Michigan Constitutions.
The United States Supreme Court in Smith v Doe, 538 US 84, 92; 123 S Ct 1140; 155 L
Ed 2d 164 (2003), discussing Alaska’s SORA, set forth a two-step inquiry for determining
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whether retroactive application of a law violates the Ex Post Facto Clause of the federal
constitution.2 Under that two-step inquiry, a court must determine:
[W]hether the [L]egislature meant the statute to establish civil proceedings. If the
intention of the [L]egislature was to impose punishment, that ends the inquiry. If,
however, the intention was to enact a regulatory scheme that is civil and
nonpunitive, we must further examine whether the statutory scheme is so punitive
either in purpose or effect as to negate [the Legislature’s] intention to deem it
civil. [Id. (quotation marks and citations omitted).]
Defendant cites People v Temelkoski, 307 Mich App 241; 859 NW2d 743 (2014), rev’d
501 Mich 960; as potentially providing insight to this issue. But that case is clearly
distinguishable from the instant case.
In Temelkoski, our Supreme Court’s concluded that the retroactive application of SORA
to the defendant was contrary to principles of due process developed in the context of plea
bargaining. Temelkoski, 501 Mich at 961; citing Santobello v New York, 404 US 257, 262; 92 S
Ct 495; 30 L Ed 2d 427 (1971). The defendant pleaded guilty in 1994 to one count of second-
degree criminal sexual conduct and was sentenced as a youthful trainee under the Holmes
Youthful Trainee Act (HYTA), MCL 762.11 et seq. The version of HTYA in effect when the
defendant entered his guilty plea provided that a trainee would not suffer any civil disability or
loss of right or privilege because of that assignment. After his plea, the Legislature adopted
SORA, which clearly imposes a civil disability. Temelkoski, 501 Mich at 961. The Court held
that the “retroactive application of SORA deprived defendant of the benefits under HYTA to
which he was entitled and therefore violated his constitutional right to due process.” Id. The
Court reasoned that the retroactive application of SORA would “disturb[] settled expectations
based on the state of the law” at the time the defendant’s plea, resulting in “manifest injustice”
and violating due process. Id. (citation omitted). Because the Temelkoski Court did not rely on
the Ex Post Facto Clause or case law applying its principles, it is distinguishable from the instant
case.
Under principles developed under the Ex Post Facto Clauses, and specifically guided by
Smith v Doe, 538 US 84, the 2011 amendment at issue in this case is not an ex post facto law.
First, the Legislature did not intend SORA to be a criminal punishment. MCL 28.721a, titled
“Legislative declarations; determination; intent,” states in relevant part, “The registration
requirements of this act are intended to provide law enforcement and the people of this state with
an appropriate, comprehensive, and effective means to monitor those persons who pose such a
potential danger.” Thus, the Legislature’s intent by enacting the registration requirements of
SORA was to “enact a regulatory scheme that is civil and nonpunitive,” Smith, 538 US at 92, by
providing law enforcement and the public with tools to monitor sex offenders. Thus, although
SORA contains criminal sanctions, it is not so different from Alaska’s SORA reviewed in Smith,
538 US 84, to conclude that SORA’s intent is punitive. See Snyder, 834 F3d at 700-701.
2
“Michigan does not interpret its constitutional provision more expansively than its federal
counterpart.” Callon, 256 Mich App at 317.
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Second, we conclude that MCL 28.727(1)(h) and (i) are not “so punitive either in purpose
or effect as to negate [the Legislature’s] intention to deem it civil.” Smith, 538 US at 92.
Defendant urges with respect to this second prong of the Smith test that this Court adopt the
reasoning of the Sixth Circuit Court of Appeals in Snyder, 834 F3d 696. We find, however, that
Snyder is distinguishable from the instant case regarding this part of the Smith test.
In Snyder, the Sixth Circuit Court of Appeals addressed whether provisions of SORA
constituted punishment in violation of the Ex Post Facto Clause of the United States
Constitution. Id. at 699-700. The Snyder court conducted the two-step inquiry that the Supreme
Court applied when analyzing whether Alaska’s SORA violated the Ex Post Facto Clause.
“[T]he test we must apply . . . is quite fixed: an ostensibly civil and regulatory law, such as
SORA, does not violate the Ex Post Facto clause unless the plaintiff can show ‘by the clearest
proof’ that ‘what has been denominated a civil remedy’ is, in fact, ‘a criminal penalty,’ ” Id. at
700, citing Smith, 538 US at 92. The court first determined that SORA did not evince a punitive
intent. Id. It then analyzed whether, despite its lack of punitive intent, SORA had the effect of
being punitive. Id. at 700-701. The Snyder Court then reviewed the five “most relevant” factors
as stated in Smith, 538 US at 97: (1) whether the law inflicts what has been regarded in our
history and traditions as punishment; (2) whether the law imposes an affirmative disability or
restraint; (3) whether the law promotes the traditional aims of punishment; (4) whether the law
has a rational connection to a nonpunitive purpose; and (5) whether the law is excessive with
respect to its purpose. Snyder, 834 F3d at 701. After its review, the court concluded
“Michigan’s SORA imposed punishment,” which “may never be retroactively imposed or
increased.” Id. at 705. Consequently, the court held that “[t]he retroactive application of
SORA’s 2006 and 2011 amendments” to the plaintiffs in that case was an unconstitutional
violation of the Ex Post Facto Clause. Id. at 706.
In reaching its conclusion, that SORA’s 2006 and 2011 amendments were ex post facto
laws, the Snyder Court observed:
A regulatory regime that severely restricts where people can live, work,
and “loiter,” that categorizes them into tiers ostensibly corresponding to present
dangerousness without any individualized assessment thereof, and that requires
time-consuming and cumbersome in-person reporting, all supported by—at
best—scant evidence that such restrictions serve the professed purpose of keeping
Michigan communities safe, is something altogether different from and more
troubling than Alaska’s first-generation registry law. SORA brands registrants as
moral lepers solely on the basis of a prior conviction. It consigns them to years, if
not a lifetime, of existence on the margins, not only of society, but often, as the
record in this case makes painfully evident, from their own families, with whom,
due to school zone restrictions, they may not even live. It directly regulates where
registrants may go in their daily lives and compels them to interrupt those lives
with great frequency in order to appear in person before law enforcement to report
even minor changes to their information. [Snyder, 834 F3d at 705.]
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The instant case is distinguishable from Snyder,3 because, unlike the plaintiffs in Snyder,
defendant in this case only challenges the reporting of telephone numbers and e-mail addresses.
As the quotation from Snyder above states, the court considered additional provisions of SORA,
most importantly, the restriction on where offenders could live, work, and loiter, as well as the
tier classification, to find that SORA had a punitive effect. In concluding that SORA was akin to
punishment, the court noted that the amended SORA included provisions that had “much in
common with banishment and public shaming,” employs geographical restrictions, “ and ha[ve]
a number of similarities to parole/probation.” Id. at 701, 703. Defendant in this case does not
challenge the restrictions on where he can live, work, or visit. Nor did defendant challenge the
tier system. He only challenges the part of the 2011 amendments requiring the reporting of
telephone numbers and e-mail addresses. The mandated reporting of telephone numbers
registered to him and e-mail addresses assigned to him does not have anything in common with
banishment, public shaming, or employing geographical restrictions; therefore, we conclude that
the provisions of SORA that defendant challenges in this case are not what has been regarded in
our history and tradition as punishment.
Additionally, MCL 28.727(1)(h) and (i) do not impose an affirmative disability or
restraint. Those subsections do not prevent or restrain defendant from having a cellular
telephone number or an e-mail address—they only mandate that defendant must register them if
he does. Further, the subsections do not promote the traditional aims of punishment such as
incapacitation, retribution, and specific and general deterrence. See Snyder, 834 F3d at 704.
Again, the reporting requirements of subsections (1)(h) and (i) do not deter an offender from
having a cellular telephone or e-mail address, they only require that an offender register phones
owned or entered as being owned by the offender and any e-mail addresses belonging to the
offender. These requirements simply further the proper civil regulatory scheme of “provid[ing]
law enforcement and the people of this state with an appropriate, comprehensive, and effective
means to monitor those persons who pose such a potential danger.” MCL 28.721a; see also
Snyder, 834 F3d at 700-701.
As just noted, with respect to the fourth “most relevant” factor, see Snyder, 834 F3d at
701, citing Smith, 538 US at 97, subsections (1)(h) and (i) have a rational connection to a
nonpunitive purpose. As stated by the Legislature’s statement of intent, the purpose of the
telephone number and e-mail address reporting requirements is to give law enforcement and the
public tools to help monitor an offender’s behavior. MCL 28.721a. We conclude that
registration of phones owned or entered as being owned by an offender, and registration of e-
mail addresses belonging to an offender is not punitive. As the trial court in this case analogized,
every driver in this state must register his or her motor vehicle with the state. Although these
requirements may be unpleasant or cause momentary interruption, they are not a punishment for
a citizen’s choice to own and drive a motor vehicle. Similarly, the same could be said for
3
“Although state courts are bound by the decisions of the United States Supreme Court
construing federal law, there is no similar obligation with respect to decisions of the lower
federal courts.” Abela, 469 Mich at 606 (citation omitted). The decisions of lower federal courts
may be considered if the court’s analyses and conclusions are persuasive. Id. at 607.
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registering telephone numbers and e-mail addresses to comply with the requirements of MCL
28.727(1)(h) and (i). So, simply requiring registration of telephone numbers and e-mail
addresses does not evidence a punitive intent or effect.
The last of the “most relevant” factors, Smith, 538 US at 97, is whether the registration
requirements are excessive with respect to its stated nonpunitive purpose? We conclude that
they are not. Again, the purpose of MCL 28.727(1)(h) and (i) is to provide tools for monitoring
an offender. An offender is required to register telephone numbers and e-mail addresses owned
or belonging to the offender. Generally speaking, people do not frequently obtain a new
telephone number or e-mail address. Thus, we find that the registration requirements of MCL
28.727(1)(h) and (i) are not excessive with respect to SORA’s stated civil nonpunitive purpose.
Because defendant in this case only challenges the registration requirements for telephone
numbers and e-mail addresses, as opposed to the living and working restrictions and the tier
system as did the plaintiffs in Snyder, we conclude that Snyder provides little guidance to this
Court regarding the retroactive application of the requirements of MCL 28.727(1)(h) and (i). We
therefore decline to adopt the analysis of Snyder as defendant urges.
C. CONCLUSION
In summation, we conclude that the “registered to” and “assigned to” portions of MCL
28.727(1)(h) and (1) are separate provisions that may properly be severed from the invalid
“routinely used” portions of the statute. See MCL 8.5; McMurchy, 249 Mich at 158. The
“registered to” and “assigned to” portions of MCL 28.727(1)(h) and (1) provide fair notice of the
conduct proscribed, do not confer on the trier of fact unstructured and unlimited discretion to
determine whether an offense has been committed, and their scope is not so overly broad as to
infringe on constitutional rights. Accordingly, we conclude that the “registered to” and
“assigned to” provisions of MCL 28.727(1)(h) and (i) are not unconstitutionally vague.
Therefore, the prosecution of this case under MCL 28.727(1)(h) and (i), as interpreted, may
proceed under the constitutionally valid portions of the statute.
We further hold that although MCL 28.727(1)(h) and (i) applied retroactively to
defendant, those provisions further a civil regulatory scheme and are not punitive in effect.
Therefore we hold that the “registered to” and “assigned to” provisions of MCL 28.727(1)(h) and
(i) do not violate the Ex Post Facto Clauses of the federal and state Constitutions. See Smith, 538
US at 92, 97, 105-106.
We affirm and remand for further proceedings. We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ Amy Ronayne Krause
/s/ Michael J. Riordan
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