Michigan files supplemental brief replying to solicitor general

By Robin . . . Claiming that the Solicitor General’s amicus brief is unpersuasive, Michigan’s Attorney General, Bill Schuette, has filed a supplemental brief in reply.

The Solicitor General filed a brief in early July at the request of the Supreme Court which sought to hear the federal government’s perspective on Snyder v. Doe (a pending petition from Michigan seeking to overturn a unanimous Sixth Circuit decision that held much of Michigan’s sex offender registry enhancements unconstitutional in August, 2016).

In view of the Solicitor General’s arguments against granting Michigan’s petition for a Writ of Certiorari, Schuette’s brief opposing the SG’s recommendation can be summarized as follows:

1) The Sixth Circuit’s decision condemns offense-based registration and therefore implicates the federal SORNA and other state SORAs in the following ways:

  • First, the Sixth Circuit concluded that offense based registration is irrational.
  • Second, the Sixth Circuit concluded that residential restrictions are overbroad and irrational.
  • Third, the Sixth Circuit thought that frequent inperson reporting is irrational.

Here, Michigan is suggesting that the Solicitor General’s recommendation is based upon a flawed appreciation of the Sixth Circuit’s suppositions about offense-based registration requirements which are presumed in both the state SORA and federal SORNA statutes.

2) The deep jurisprudential splits on SORA laws are not attributable to case-specific differences because:

  • The splits among the lower courts are not attributable to statutory differences.
  • Judicial disagreement over legislative facts does not erase the conflicts.

Here, Michigan is claiming that opposing outcomes in federal district courts are not case-specific but are actually interpretations of constitutional law that are substantively opposite on similar grounds. In simple terms, there are (in Michigan’s opinion) real differences of opinion about what is and what isn’t constitutional regarding SORA laws. Those differences need to be resolved and Michigan’s petition provides the Court with a suitable opportunity to do that (again, Michigan’s opinion).

3) The federal government declines to say that Michigan’s federal funding is not at risk.

Here, Michigan is essentially restating its previous arguments in support of the petition while alleging, inter alia, that the SG’s amicus brief skirts the state’s concerns about how the Sixth Circuit’s ruling will impact Michigan’s compliance with federal SORNA requirements:

The federal government notably declines to say that Michigan’s federal funding is safe. Instead, it hedges, saying that it “may well be the case” that Michigan can continue to receive federal funds, that Michigan “may” be able to “reenact in modified form a subset of the requirements” held punitive and enforce them retroactively, that elimination of Michigan-unique SORA features “may” be sufficient to eliminate the Sixth Circuit’s concerns, and—tellingly—that “even if the State chooses not to” (cannot?) reinstate “the retroactive application of the few relevant features in SORA that are required by SORNA,” Michigan would “not necessarily” lose federal funding.

It’s important to keep proper perspective in mind when attempting to discern the legal ramblings of attorneys about complex constitutional questions. But that’s only part of the issue when those questions are filtered through the Court’s petition process. In reading Michigan’s most recent brief, one might get the mistaken impression that Michigan is on the other side of the key questions presented. But that certainly is not the case. Michigan is merely attempting to attract the Court’s attention in the hope of getting its petition granted in an effort to overturn the Sixth Circuit’s decision.

So here’s the lay of the land: Michigan wants the petition granted because it expects the high Court to overturn the outcome below. Does’ attorneys do NOT want the petition granted because, simply put, they won. The federal government, represented at this juncture by the Solicitor General, does not want the petition granted because it believes that the Sixth Circuit arrived at its decision using the correct application of constitutional principles and because it does not believe that the outcome causes any conflict between state SORA and federal SORNA requirements.

The petition is scheduled for conference on September 25, 2017.

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As vice chair of NARSOL, Robin is the managing editor of the Digest, director of development, and provides assistance to the webmaster in keeping our websites running smoothly. He also serves as founder and president of Vivante Espero, NARSOL's 501(c)(3) foundation and legal fund.

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