Reconciling the irreconcilable: Recent state and federal court opinions involving 2021 SORA

From the November 2024 Criminal Defense Newsletter
In September 2024, the United States District Court for the Eastern District of Michigan concluded that the Michigan Sex Offender Registration Act (SORA), as amended in 2020 and effective in 2021 (2021 SORA), constitutes criminal punishment. Does v Whitmer, opinion of the United States District Court for the Eastern District of Michigan, issued September 27, 2024 (Case No. 22-cv-10209) (Does III). 

Just over a month later, the Michigan Court of Appeals issued a published opinion, finding that the 2021 SORA does not constitute criminal punishment. People v Kiszenski, __ Mich App __ (2024) (Docket No. 364957). 

These two conflicting opinions applied the same legal framework and examined the same statutes but arrived at opposite conclusions. This article examines the history leading up to these opinions and addresses the questions raised by this conflict—including how the courts could reach such divergent outcomes, whether one decision takes precedence over the other, and, most importantly, the practical implications for SORA registrants and their reporting obligations.

SORA: 1994-2011 

Michigan enacted the Michigan Sex Offender Registration Act (SORA) in 1994, with an effective date in 1995 SORA was amended on several occasions during the 1990’s and 2000’s, and again in 2011 to introduce a tiered classification system, categorizing registrants as ‘Tier I,’ ‘Tier II,’ or ‘Tier III’ sex offenders based on the statute of conviction. 2011 SORA also required the publication of registrants’ names, tiers, and offenses in a publicly accessible online database. 2011 SORA also prohibited registrants from living, working, or loitering within 1,000 feet of a school zone, and imposed immediate reporting requirements, often in-person, for changes such as a new residence, vehicle purchase, or email address registration.

Does #1-5 v Snyder (CA6, 2016) (Does I)

In 2012, four plaintiffs (John Does #1-#4) filed a complaint in the U.S. District Court for the Eastern District of Michigan against Governor Richard Snyder and Michigan State Police Colonel Kriste Etue. The plaintiffs’ offenses, which subjected them to SORA registration, were committed before 2011. The plaintiffs asserted that the 2011 amendments transformed SORA into a criminal punishment. Consequently, they argued that applying 2011 SORA retroactively violated the U.S. Constitution’s prohibition against ex post facto punishments. The plaintiffs sought a permanent injunction (or a court order) prohibiting the defendants and their agents from enforcing 2011 SORA against them. The Ex Post Facto Clauses in both the U.S. and Michigan Constitutions prohibit criminal punishments that were not authorized when the offense was committed. Because ex post facto protections apply only to criminal punishment—and not civil regulations—the constitutionality of extending or amending registrants’ reporting obligations hinges on whether those obligations qualify as criminal punishment.

Before trial, the defendants moved to dismiss, arguing that “Plaintiffs' ex post facto claim fails as a matter of law because SORA, as amended in 2011, is not a criminal statute.” Does #1-4 v Snyder, 932 F Supp 2d 803, 809 (ED Mich, 2013). The District Court applied the seven-factor test from Kennedy v Mendoza-Martinez, 372 US 144 (1963), and concluded that 2011 SORA constituted a civil regulation, not criminal punishment, so the plaintiffs could be required to comply with its terms. Id. at 810. 

The plaintiffs appealed to the U.S. Court of Appeals for the Sixth Circuit, which reexamined 2011 SORA in light of the Mendoza-Martinez factors and concluded that 2011 SORA did constitute criminal punishment. Does #1-5 v Snyder, 834 F3d 696, 705 (CA 6, 2016) (Does I). The Sixth Circuit’s determination centered on provisions in the 2011 amendments that (1) prohibited registrants from living, working, or loitering within 1,000 feet of a school; (2) required public online disclosure of registrants’ tier classifications, names, offenses, and other personal information; and (3) imposed onerous in-person reporting requirements. Id. at 701-705. The Sixth Circuit reversed the District Court, concluding that the “retroactive application of SORA’s … 2011 amendments … is unconstitutional, and it must therefore cease.” Id. at 706. 

The U.S. Supreme Court denied the defendants’ petition for certiorari. Snyder v John Does #1-5, 583 US 814 (2017). Following this, the District Court entered an order enjoining the defendants “from enforcing the 2006 and 2011 SORA amendments against the plaintiffs.” 

Doe v Snyder (ED Mich, 2020) (Does II)

The Sixth Circuit’s opinion and the District Court’s order in Does I only directly applied and awarded relief to the then five individual plaintiffs, effectively prohibiting Michigan from prosecuting those individuals for failing to comply with 2011 SORA. The order did not extend to other SORA registrants whose offenses occurred prior to 2011, nor did it prevent the Michigan State Police (MSP) from publishing information about other registrants online. 

Because a Sixth Circuit decision is not binding precedent in Michigan, Johnson v VanderKooi, 502 Mich 751, 764 n 6 (2018), the holding in Does I—that retroactive application of 2011 SORA violated the U.S. Constitution—did not prevent Michigan trial or appellate courts from reaching a contrary conclusion. As such, while the five plaintiffs in Does I were shielded from prosecution by the Sixth Circuit opinion and District Court order, other registrants in identical circumstances still faced prosecution for violating 2011 SORA. Additionally, the MSP could continue publishing information about their identities and offense tiers online.

Within the Sixth Circuit, however, Does I is binding precedent. Markva v Haveman, 168 F Supp 2d 695, 708 (ED Mich, 2001). Federal district courts in Michigan must adhere its holding that 2011 SORA constitutes criminal punishment and that retroactively applying it violates the Ex Post Facto Clause. To extend the relief afforded to the named plaintiffs in Does I to similarly situated registrants, attorneys next filed a federal class action lawsuit in the Eastern District of Michigan against the same defendants as in Does I, but on behalf of all SORA registrants whose offenses predated the effective date of 2011 SORA.

The complaint sought an order “enjoining Defendants and their agents from enforcing the entirety of SORA against registrants whose offenses occurred prior to the enactment of the 2011 amendments to SORA.” Doe v Snyder, 449 F Supp 3d 719, 723 (ED Mich, 2020) (Does II).

In Does II, the District Court, bound by the Sixth Circuit’s decision in Does I, declared 2021 SORA “NULL AND VOID as applied to members of the ex post facto subclasses (any registrant whose offense requiring them to register, and who has not committed a subsequent offense, occurred prior to April 12, 2011).” Id. at 738. It also enjoined the defendants and their agents “from enforcing ANY provision of SORA against members of the ex post facto subclasses.” Id.

The District Court temporarily stayed enforcement of its order and later suspended entry of a final order during the pandemic, while temporarily enjoining retroactive enforcement of certain aspects of 2011 SORA. The court explained that the suspension was necessary because the pandemic impeded the MSP’s ability to identify members of the ex post facto class and delayed legislative efforts to amend SORA to make it constitutional. Doe v Snyder, 612 F Supp 3d 710, 713 (ED Mich, 2020).

People v Betts (MSC 2021)

In 1993, Paul Betts pled guilty to second-degree criminal sexual conduct and was sentenced to 5 to 15 years of imprisonment. After his sentencing, the first version of SORA was enacted, retroactively requiring him to register as a sex offender and criminalizing his failure to do so. In 2012, Mr. Betts was charged with violating 2011 SORA’s new requirements that registrants report changes to their residence, email addresses, and purchase of a vehicle within three days, which is a four-year felony for first-time offenders. People v Betts, 507 Mich 527, 536–37 (2021). 

Mr. Betts moved to dismiss in the trial court on the grounds that 2011 SORA constitutes an ex post facto punishment. The trial court denied Mr. Betts’s motion, so he entered a no-contest plea, conditioned on his ability to challenge on appeal the constitutionality of the retroactive application of the 2011 SORA. Id. at 502. The Court of Appeals denied Mr. Betts for leave to appeal, but the Michigan Supreme Court granted his application. 

The Michigan Supreme Court employed reasoning similar to the Sixth Circuit’s in Does I, and also concluded “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. Consequently, the Court vacated Mr. Betts’ conviction for failure to register. Id. 

Like Does I, the Michigan Supreme Court’s decision in Betts only directly benefitted the individual registrant who was a named party in the suit. However, because decisions of the Michigan Supreme Court are binding precedent within the Michigan Court of Appeals and Michigan trial courts, those courts are required to rule consistently with the Betts opinion and could not deny relief in other cases based on the conclusion that 2011 SORA is not punishment or that its retroactive enforcement does not violate the Ex Post Facto Clause. 

The Betts decision effectively protected registrants from future prosecutions for violations of 2011 SORA committed between July 2011 and March 2021, as long as the offense requiring registration predated July 2011. It also enabled registrants like Mr. Betts to have their SORA-based convictions vacated where they were in the process of appealing their conviction.

People v Lymon (COA 2022) & People v Lymon (MSC 2024) 

In enacting 2021 SORA, the Legislature sought to moderate 2011 SORA’s most punitive provisions, so that 2021 SORA would no longer constitute a criminal punishment, and it could be retroactively enforced against individuals required to register based on pre-2011 offenses. To accomplish these goals, 2021 SORA (1) eliminated the provisions of SORA prohibiting registrants from living, working, or loitering within 1,000 feet of a school; (2) prohibited the online publication of registrants’ tier classifications on the publicly accessible registry; and (3) based registrants’ reporting obligations to the date of their offense. 

The impact of the Michigan Supreme Court’s decision in Betts and the Sixth Circuit’s opinion in Does II was greatly reduced by the enactment of the 2021 SORA, which took effect in March 2021, before the opinion in Betts issued and before the final judgment in Does II was entered. Although lower federal and state courts were respectively bound by the decisions in Does II and Betts that 2011 SORA constituted criminal punishment and could not be retroactively enforced, stare decisis did not obligate those courts to conclude that 2021 SORA also constitutes criminal punishment. 

People v Lymon, 342 Mich App 46, 52 (2022) was the first published decision addressing a constitutional challenge to 2021 SORA, but was only peripherally related to the ex post facto issue, as the offense requiring SORA registration was committed in 2014, and Mr. Lymon did not raise an ex post facto argument. Instead, he challenged SORA registration under the theory that it was cruel or unusual punishment as applied to him. 

In 2014, Mr. Lymon was convicted of unlawful imprisonment based on evidence that he got into an argument with his wife while their minor children were present and forced them to stay with him for several hours at gunpoint. As a result of his conviction, Mr. Lymon was required to register as a Tier I offender under SORA, which mandates registration for unlawful imprisonment “if the victim is a minor.” Lymon, 342 Mich App at 52; MCL 28.722(s)(iii).

Mr. Lymon appealed his conviction and also argued that requiring him to register as a sex offender violated the Michigan’s Constitution’s prohibition on cruel or unusual punishments because he had not committed a sexual offense. Before addressing whether SORA registration was cruel or unusual punishment as applied to Mr. Lymon, the Michigan Court of Appeals was first required to determine whether SORA registration constituted criminal punishment under 2021 SORA. Lymon, 342 Mich App at 70. 

The Court of Appeals largely found that the Supreme Court’s analysis of the Martinez-Mendoza factors in Betts regarding 2011 SORA was applicable to 2021 SORA. While 2021 SORA had eased some of the most punitive measures considered in Betts, it had simultaneously created new restrictions and obligations of SORA registrants. As such, the Michigan Court of Appeals held that 2021 SORA continued to constitute criminal punishment. It then held “requiring Lymon to register as a sex offender for 15 years is cruel or unusual punishment because it is unjustifiably disproportionate to the offense committed,” since “there anything to suggest that he will commit a sexual offense in the future,” and [h]e is not a sexual predator.” Id. at 88-89. Accordingly, the court ordered the trial court to remove Mr. Lymon from the registry.

Mr. Lymon sought leave to appeal the Court of Appeals’ decision affirming his conviction, while the prosecution sought leave to appeal its SORA holding. The Supreme Court denied Mr. Lymon’s application but granted the prosecution’s application. People v Lymon, 983 NW2d 82, 83 (Mich, 2023). 

In July 2024, the Michigan Supreme Court held that “the imposition of the 2021 SORA on non-sexual offenders like defendant constitutes cruel or unusual punishment under the Michigan Constitution.” People v Lymon, ___ Mich ___ (2024) (Docket No. 164685). However, it “vacate[d] the opinion of the Court of Appeals insofar as its conclusions went beyond the consideration of non-sexual offenders.”

The conflicting Court of Appeals and district court decisions 

During the two years between the Michigan Court of Appeals’ and Supreme Court’s opinions in Lymon, the Court of Appeals’ conclusion that 2021 SORA imposed a criminal punishment was binding pre-cedent, and likely required Michigan trial courts and other Court of Appeals panels to hold that retroactive enforcement of 2021 SORA against registrants with pre-2011 offenses violated the constitutional prohibition on ex post facto punishments. By vacating this portion of the Court of Appeals’ decision, however, the Michigan Supreme Court effectively reopened the question of whether 2021 SORA constitutes criminal punishment. 

As a result, between July 2024 and October 2024, there was no precedent in either federal court or in Michigan dictating whether or not 2021 SORA constitutes criminal punishment. Moreover, because 2011 SORA had been replaced by 2021 SORA, the injunctions prohibiting enforcement of 2011 SORA that issued in Does I and Does II did not shield the class members in those cases from prosecution for violating 2021 SORA.

Doe v Whitmer (ED Mich, 2024) (Does III)

Shortly after the 2021 SORA took effect, the lawyers who had represented the plaintiffs in Does I and Does II filed a second-class action lawsuit against the Michigan Governor and the head of the Michigan State Police. Does III sought to enjoin enforcement of 2021 SORA.

Does III was filed on behalf of all SORA registrants, regardless of the date of their offense, and includes several sub-classes. The largest sub-class is ‘pre-2011 ex post facto subclass’, which consists of “members of the primary class who committed the offense(s) requiring registration before July 2011.” 

As discussed in the October 2024 issue of the CDN, Does III held that like 2011 SORA, 2021 SORA constitutes criminal punishment, so the enforcement of 2021 SORA against the pre-2011 ex post facto subclass violates the U.S. Constitution’s prohibition on ex post facto punishments. As a result, the District Court held that the subclass is entitled to an injunction against the defendants (the Michigan Governor and State Police) and their agents, prohibiting the enforcement of 2021 SORA against members of the subclass. 

The District Court’s decision in Does III did not have any immediate legal effect because, as mentioned earlier, federal district court decisions lack precedential value, and are not enforceable by the parties until reduced to a final judgment. At the conclusion of the opinion in Does III, the District Court ordered the parties to meet and attempt to draft a proposed judgment reflecting its holdings. Assuming enforcement is not stayed pending appeal, this judgment will enjoin enforcement of 2021 SORA. 

The parties submitted a joint proposed judgment on November 1, 2024. However, as to the District Court’s holding that 2021 SORA could not be retroactively enforced, the proposed judgment stated only: “The parties are continuing to discuss the terms of the proposed judgment with regard to the Court’s ruling on the first count.” It is unknown when the District Court will enter a final judgment and whether enforcement of the judgment will be stayed pending appeal. 

People v Kiszenski (COA 2024)

People v Kiszenski, __ Mich App __ (2024) (Docket No 364957) is a postconviction appeal stemming from charges brought against David Kiszenski in Bay County Circuit Court. Mr. Kiszenski was convicted of first-degree criminal sexual conduct in 1980 and became subject to SORA registration in 1995, when Michigan’s first version of SORA took effect.

After his release from prison, Mr. Kiszenski filed a motion arguing that the 2011 SORA registration requirements constituted an ex post facto punishment and were unenforceable under Betts. The prosecutor conceded that 2011 SORA is unenforceable against Mr. Kiszenski under Betts, but argued that 2021 SORA does not constitute punishment, and therefore is retroactively enforceable against Mr. Kiszenski. The trial court agreed with the prosecutor, and Mr. Kiszenski sought leave to appeal.

The Court of Appeals applied the same Mendoza–Martinez factors utilized Betts, and acknowledged that it was bound by Betts, but reached a contrary result. The differing outcome seems to stem from the Kiszenski Court’s interpretation of the Michigan Supreme Court’s holding in Lymon that individuals with non-sexual offenses could not be required to register under SORA as fundamentally altering the analysis. The Kiszenski Court reasoned that this narrowed scope—limiting 2021 SORA registration only to actual sex offenders—fundamentally altered the Betts analysis by making 2021 SORA less punitive and more focused on societal protection. This factor appears to have been given substantially more weight by the Court of Appeals in Kiszenski than any amendments to 2021 SORA made by the Legislature. 

The Court of Appeals acknowledged in Kiszenski that Does III had reached a contrary conclusion to its own but attributed this to the District Court’s insufficient consideration of the Legislature’s non-punitive intent in enacting 2021 SORA and the District Court’s purportedly erroneous finding that the law’s registration requirements were excessive compared to its stated purpose.

Because the Court of Appeals concluded that 2021 SORA does not constitute criminal punishment as applied to registrants convicted of sexual offenses, it held that the trial court did not err in denying Mr. Kiszenski’s motion and affirmed the ruling. The practical significance of removing registrants with non-sexual offenses on the Betts analysis is somewhat doubtful. The provision addressed by Lymon, requiring sex offender registration where the defendant is convicted of certain offenses against minors predated 2011-SORA. Additionally, Does III stated that the ‘non-sex offense subclass’ included 298 people, and made up just 0.7% of the primary class. Given that Betts never mentioned those individuals, it is difficult to see how removing them from the Betts Court’s consideration would meaningfully impact its conclusion that SORA constitutes criminal punishment. That said, by vacating and narrowing the Court of Appeals decision Lymon, the Supreme Court clearly authorized the Court of Appeals to reach a contrary conclusion to Betts. 

While the Court of Appeals’ holding in Kiszenski decision only directly affects Mr. Kiszenski, it is a published opinion, so it has “precedential effect under the rule of stare decisis.” MCR 7.215(C)(1). While People v Kiszenski only directly addressed Mr. Kiszenski’s reporting obligations under 2021 SORA, as binding precedent, it will preclude Michigan trial courts and future panels of the Michigan Court of Appeal from granting relief based on the argument that 2021 SORA constitutes criminal punishment as applied to registrants convicted of sexual offenses. MCR 7.215(J)(1). As a result, trial courts must deny relief in cases where the argument relies on a finding that 2021 SORA constitutes criminal punishment and future Court of Appeals panels would be required to reverse any trial court that renders a decision finding 2021 SORA is criminal punishment as applied to registrants convicted of sexual offenses. 

Kiszenski will cease to be precedent if it is directly reversed by the Michigan Supreme Court or U.S. Supreme Court, or if its holding is overturned in another case by a special panel of the entire Court of Appeals or by the Michigan Supreme Court or U.S. Supreme Court. Mr. Kiszenski has 56 days from entry of the Court of Appeals decision to seek leave to appeal to the Michigan Supreme Court. If the Michigan Supreme Court grants leave to appeal and reverses the decision, or if U.S. Supreme Court intervenes and ultimately reverses the Court of Appeals, then the opinion will cease to bind lower courts. Even if the Court of Appeals’ decision in Kiszenski is not reversed directly, it may also cease to have precedential value if its holding is reversed in a future decision in another case by the 

Michigan Supreme Court or U.S. Supreme Court, as “state courts are bound by United States Supreme Court decisions construing federal law,” even though “they are not similarly bound by the decisions of the lower federal courts.” People v Gillam, 479 Mich 253, 261 (2007).

Although Kiszenski issued after Does III, the Court of Appeals was not required to adhere to the district court’s holding in Does III that 2021 SORA constitutes criminal punishment because a federal district court decision is not binding precedent, even in the district where it is entered. Camreta v Greene, 563 US 692, 709 n 7 (2011). It is also important to note that Kiszenski is not binding precedent in federal courts, even those federal courts located within Michigan. So, the U.S. District Court will not be required to revisit its decision in Does III, and other cases filed in the Eastern District of Michigan or appeals to the Sixth Circuit Court of Appeals or U.S. Supreme Court are not required to adhere to or even consider Kiszenski.

Notably, like Mr. Betts, Mr. Kiszenski is a member of the pre-2011 ex post facto subclass in Does III and will be entitled to the relief awarded to the subclass in Does III, even though the Court of Appeals specifically held that he is not entitled to relief from judgment in People v Kiszenski. 

The present and future state of the law
 
Although Does III lacks precedential value, if and when it is reduced to a final judgment that is allowed to take effect, it will render 2021 SORA unenforceable against individuals required to register for offenses committed before 2011 SORA took effect. If this happens, the Court of Appeals’ decision in Kiszenski—which held that 2021 SORA is retroactively enforceable—will have little practical significance, as those entities tasked with enforcing 2021 SORA will be prohibited from doing so. Under Kiszenski, registrants like Mr. Kiszenski and Mr. Betts will not be entitled to an order explicitly relieving them of their SORA obligations, but under Does III, they will be entitled to an injunction prohibiting their prosecution for failing to register and prohibiting the State Police from publishing their names and information about their offenses online.
Given the significance of the issue and the clear conflict between the Court of Appeals’ decision in Kiszenski and the District Court’s ruling in Does III, it is highly likely that higher courts will eventually issue rulings in Does III, Kiszenski, or both.

Individuals required to report under the 2021 SORA, including those provisions deemed unconstitutional by Does III, can still be prosecuted for failing to properly register and report. After a final order is issued in Does III, registrants should anticipate receiving correspondence from the Michigan State Police or their attorneys explaining their updated reporting obligations. Anyone interested in whether and how the conflict between Michigan and federal law will be resolved should continue to read and check out the next few issues of the Criminal Defense Newsletter. 

Steven Helton
Research & Training Attorney, CDRC