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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