By Robin . . . Stating that the Sixth Circuit Court of Appeals had applied the correct legal framework as well as the correct legal standard in reaching its unanimous opinion in the Does v. Snyder case, in his brief on behalf of the United States, the Solicitor General, Jeffrey B. Wall, is urging the U.S. Supreme Court not to grant Michigan’s Petition for a Writ of Certiorari. The Solicitor General further argued that federal SORNA requirements do not require the states to enact any of the punitive and “problematic” aspects of Michigan’s post-2006 amendments that were cited by the Sixth Circuit’s opinion:
Because SORNA does not require States to enact statutory provisions paralleling those the court of appeals identified as problematic, it is doubtful that complying with the court of appeals’ decision will imperil Michigan’s eligibility for SORNA related funds—particularly if the legislature amends the relevant provisions of SORA to address the court of appeals’ concerns while satisfying the floor imposed by SORNA.
The Sixth Circuit Court of Appeals held in August, 2016, that Michigan’s enhancements to its basic registration requirements were unconstitutional in violation of the Ex Post Facto clause and did so within the framework set forth by the Supreme Court’s 2003 Smith v. Doe opinion in a challenge to Alaska’s sex offender registration requirements.
The Solicitor General also concludes that the Sixth Circuit’s Does v. Snyder decision does not conflict with Smith v. Doe.
No conflict exists between the decision in Smith, which considered the aggregate effects of a law containing a different combination of features, and the decision below. The court of appeals acknowledged some overlap between the two statutory schemes, but explained that it found Michigan’s law to be “altogether different from and more troubling than Alaska’s first-generation registry law.”  Unlike SORA, Alaska’s law did not establish school-safety zones, did not publish a sex offender’s tier classification, and did not require in-person appearances to update information such as temporary residence and e-mail address.
It is far too early to assess the advantages and disadvantages of the Solicitor General’s brief on behalf of the United States government. And the Supreme Court may yet decide to grant the Petition even despite the Solicitor General’s recommendation that it be denied.
Stand by for further analysis of what this recommendation may mean in the long term.
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.