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Spencer v. State Police Dir.

STATE OF MICHIGAN COURT OF APPEALS
Nov 19, 2020
No. 352539 (Mich. Ct. App. Nov. 19, 2020)

Opinion

No. 352539

11-19-2020

WILLIAM SIM SPENCER, Plaintiff-Appellant, v. STATE POLICE DIRECTOR, Defendant-Appellee.


If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Court of Claims
LC No. 19-000180-MZ Before: JANSEN, P.J., and FORT HOOD and RONAYNE KRAUSE, JJ. PER CURIAM.

Plaintiff, William Sim Spencer, appeals by right the order of the Court of Claims granting summary disposition in favor of defendant, the State Police Director, and denying plaintiff's motion for preliminary injunction. This matter is the latest in a series of cases in which plaintiff, who pleaded guilty in 2001 to eight counts of CSC-II, MCL 750.520c(1)(a) (sexual contact with a person under the age of 13), seeks to avoid the registration requirements of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. We affirm.

I. BACKGROUND

In 2001, plaintiff, who was represented by counsel, entered pleas of guilty to eight counts of CSC-II. The trial court sentenced him to eight to fifteen years' imprisonment at that time. In 2003, plaintiff filed a delayed application for leave to appeal in Docket No. 245851, contending that his sentence was disproportionate, he had been coerced by his attorney into pleading guilty, and the trial court had abused its discretion by refusing to permit him to withdraw his plea. This Court denied the application for leave to appeal, and our Supreme Court subsequently also denied leave to appeal. People v Spencer, 469 Mich 907; 669 NW2d 817 (2003). In June 2005, plaintiff filed a complaint for a writ of habeus corpus in Docket No. 253325, which this Court dismissed as an improper attempt at a substitute for an appeal. In December 2005, plaintiff again filed an application for leave to appeal, claiming ineffective assistance of counsel, improper scoring of several sentencing guidelines offense variables (OVs), and that the trial court should have permitted him to withdraw his plea. This Court denied plaintiff's application; but our Supreme Court held that the trial court had, in fact, improperly scored one of plaintiff's OVs, and it remanded for either resentencing or to permit plaintiff to withdraw his plea. People v Spencer, 477 Mich 1086; 729 NW2d 225 (2007).

On remand, plaintiff appeared in propria persona, declined the trial court's offer to have an attorney appointed, and argued that our Supreme Court had ordered that he should be permitted to withdraw his plea. Plaintiff also argued that his plea was unknowing, involuntary, and coerced; that he had been threatened with his children being placed into protective custody unless he pled guilty; that he did not actually commit the crimes; and that the "essential elements of the offense were not listed in the Information." The trial court instead limited itself to only our Supreme Court's directive. It resentenced plaintiff to 6? to 15 years' imprisonment with credit for slightly less than six years served. It also ordered compliance with sex offender registration. Plaintiff would eventually not be paroled, and he served the entirety of his 15 years in prison. During 2007, plaintiff made several other attempts to appeal or avoid his sentence or conviction, none of which succeeded. See People v Spencer, 480 Mich 1008; 743 NW2d 10 (2008); Spencer v Dep't of Corrections, 482 Mich 1068; 757 NW2d 502 (2008).

In the meantime, plaintiff sought relief from judgment on the basis of retroactive amendments to the SORA, which our Supreme Court ultimately held was not appropriate grounds for relief under MCR 6.508(D) but might be a proper subject for a declaratory judgment civil action after his release from prison. People v Spencer, 493 Mich 939; 829 NW2d 592 (2013). Plaintiff apparently accepted our Supreme Court's advice. On August 16, 2016, plaintiff filed a complaint in Benzie Circuit Case No. 16-010475-CZ against the Benzie County Prosecutor and the Director of the Department of State Police. Among other things, plaintiff argued that the registration requirements of the SORA exposed him to dangers and interfered with his rights. He argued that he would not have waived his right to a jury trial if he had known he would be subject to the requirements of the SORA, but he nevertheless stated that he was not challenging his underlying convictions. The trial court declined plaintiff's request to completely enjoin enforcement of the SORA.

While that matter was pending, the United States Sixth Circuit Court of Appeals decided Does #1-5 v Snyder ("Does I"), 834 F3d 696 (CA 6, 2016), cert den 138 S Ct 55; 199 L Ed 2d 18 (2017). The Sixth Circuit held that the SORA does impose punishment, which might well be warranted, but such punishment could not "be retroactively imposed or increased" without violating the Ex Post Facto clause of the United States Constitution. Does I, 834 F3d at 705-706. It therefore held, in relevant part, that the 2006 and 2011 amendments to the SORA may not be applied to registrants whose offenses occurred before the effective dates of those amendments. Id. The Sixth Circuit expressly left "for another day" any other questions that had been raised in that case, such as whether the provisions of the SORA were unconstitutionally vague. Id. at 698, 706.

Subsequently, in Benzie Circuit Case No. 16-010475-CZ, plaintiff sought to clarify that he was only requesting the trial court enjoin enforcement of the 2006 and 2011 amendments to the SORA (M Tr 2016-11-29, p 11). The Benzie County Prosecutor, Sara Swanson, appearing on her own behalf, stated that she was aware that "[t]he 6th Circuit Court of Appeals has ruled that the 2006 and 2011 amendments to the [SORA] are ex post facto and are unconstitutional as applied to defendants that were convicted before those dates such as [plaintiff]," and she stated that as a binding decision, she would follow it without any need for a restraining order. However, she pointed out that the SORA had not been held unconstitutional in its entirety, and if plaintiff failed to comply with the other provisions, "it is very possible that my office would prosecute him." The trial court admonished plaintiff to "appreciate what Ms. Swanson has said to you today" about what she would and would not enforce. Nevertheless, plaintiff did not register, and in December 2016, he was arrested for failing to verify his address as required by the SORA. In a parallel action plaintiff commenced in federal court, the United States District Court for the Western District of Michigan held that plaintiff's arrest raised no ex post facto concerns, because he had been arrested for failing to comply with provisions of the SORA that had been in effect in 2001, rather than for any requirements of the 2006 or 2011 amendments. Spencer v Snyder, unpublished opinion of the United States District Court for the Western District of Michigan, issued December 29, 2016 (Case No. 1:16-CV-1465). On January 3, 2017, plaintiff finally registered pursuant to the pre-2006 version of the SORA.

Continuing in Benzie County Circuit Case No. 16-001475-CZ, plaintiff again moved for a preliminary injunction on the theory that the 2006 and 2011 amendments to the SORA had repealed the previous versions of the SORA. The trial court disagreed with plaintiff's reading of the Does I case and declined to hold SORA unconstitutional altogether. Plaintiff also filed a complaint for writ of superintending control, which was ultimately denied. In re Spencer, 501 Mich 852; 900 NW2d 355 (2017). However, this Court agreed with plaintiff to the extent he argued that he was entitled to an injunction protecting him from prosecution for any violation of the requirements of the 2006 and 2011 amendments to the SORA. Spencer v Benzie Co Prosecuting Attorney (Spencer I), unpublished per curiam opinion of the Court of Appeals, issued November 14, 2017 (Docket No. 337827), pp 2-3. Nevertheless, plaintiff apparently continued to argue that the 1999 version of the SORA was absolutely null and void.

As will be discussed, later developments in federal court would partially vindicate this argument.

Meanwhile, plaintiff's criminal prosecution for failing to register resulted in two consolidated appeals, in Docket Nos. 343367 and 343468. This Court, in an unpublished opinion, explained that some confusion had ensued over exactly what reporting requirements applied to plaintiff in light of the multitude of court proceedings. People v Spencer (Spencer II), unpublished per curiam opinion of the Court of Appeals, issued January 22, 2019 Docket Nos. 343367 and 343468, unpub at pp 2-3. This Court held, in relevant part:

First, defendant [i.e., plaintiff] argues that the circuit court erred by failing to grant his request to allow him to discontinue SORA registration under MCR 2.601(A).

An error is plain when it is contrary to well-settled law. See People v Vaughn, 491 Mich 642, 665; 821 NW2d 288 (2012). MCR 2.601(A) states, "Except as provided in [MCR 2.601(B)], every final judgment may grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded that relief in his or her pleadings." However, the court rules governing civil procedure do not apply to criminal cases "when it clearly appears that they apply to civil actions only," among other exceptions. MCR 6.001(D)(3). Defendant has not provided—and this Court has been unable to find—any authority applying MCR 2.601(A) in a criminal case. We conclude that the circuit court did
not commit a plain or obvious error by declining to apply this court rule in defendant's case.

Second, defendant argues that the circuit court should have held that he need not verify his address under SORA because the court in his initial criminal case failed to comply with SORA's mandatory presentencing procedures. We conclude that the circuit court did not err by declining to consider defendant's improper collateral attack on his CSC-II judgment of sentence.

"[A] collateral attack occurs whenever a challenge is made to a judgment in any manner other than through a direct appeal." People v Howard, 212 Mich App 366, 369; 538 NW2d 44 (1995). The failure of a plea-taking court to comply with procedural requirements during a proceeding does not provide a defendant the opportunity to challenge the conviction through a collateral attack. People v Ingram, 439 Mich 288, 295-296; 484 NW2d 241 (1992). In this case, defendant had the opportunity to challenge on direct appeal his CSC-II judgment's requirement that he comply with SORA. This Court denied defendant's application for leave to appeal. . . . Because this case is not on direct appeal, the circuit court properly declined to allow defendant to collaterally attack his prior judgment of sentence. [Spencer II, unpub at pp 3-4.]
This Court also held that Spencer I was law of the case, and as a consequence, the 1999 version of the SORA was the only version of SORA that applied to plaintiff; thus, plaintiff could be charged with violating only registration requirements set forth under 1999 PA 85. Spencer II, unpub at pp 4-6. Finally, this Court rejected plaintiff's argument that the amendments to the SORA in 2006 PA 402 and 2011 PA 17 "nullified" the definition of "listed offense" found in the SORA under 1999 PA 85. Spencer II, unpub at p 6. Our Supreme Court denied leave for appeal in this Court's Docket No. 343468. People v Spencer, 504 Mich 894; 928 NW2d 698 (2019). The criminal prosecution against plaintiff for failing to register under the SORA was then dismissed.

On October 22, 2019, plaintiff filed his complaint in the instant matter in the Benzie County Circuit Court, where it was captioned as Case No. 2019-11225-CZ. Plaintiff named as defendants the Benzie County Prosecutor and the State Police Director. The claims against the State Police Director were promptly removed to the Court of Claims and form the basis for the instant appeal in Court of Claims Case No. 19-000180-MZ. Plaintiff's complaint is difficult to follow, but he generally alleges that the SORA infringes upon various of his rights. Plaintiff also challenges the constitutionality of MCL 769.12 (enhanced punishment for three or more felonies), although it is not clear whether he seeks to present a facial challenge or just in the context of the SORA. Plaintiff also presents a number of allegations that substantively constitute challenges to his original 2001 convictions. Plaintiff presents a number of allegations that again seem to either challenge the constitutionality of the SORA or its applicability to him. Plaintiff sets forth extensive arguments to the general effect that his 2001 convictions were improper and "invalid," while simultaneously arguing that he is not actually trying to collaterally attack those convictions.

Plaintiff also contends that he received ineffective assistance of appellate counsel in 2001. We take judicial notice of our own records, see In re Albert, 383 Mich 722, 724; 179 NW2d 20 (1970), and cannot find any record of any attempted appeal by plaintiff in 2001; he did not file a delayed application for leave to appeal until 2003. Plaintiff appears to have represented himself in all subsequent appeals, including, notably, his appeal from his first motion for relief from judgment, which had included an assertion that he had received ineffective assistance of appellate counsel.

Reading plaintiff's complaint as a whole, we interpret it as setting forth the argument that MCL 769.12 is unconstitutional because it permits a prior conviction to be used to increase a future penalty without affording the defendant an opportunity to challenge the validity of that prior conviction. Plaintiff additionally seems to argue that the SORA is also unconstitutional for the same reason. He also, despite claiming not to be challenging his 2001 convictions, is clearly in effect challenging his 2001 convictions; or at least he is arguing that he should be able to make such a challenge. Plaintiff argues that the 2001 finding that he engaged in sexual contact with persons under the age of 13 is irrelevant to the issue of whether the prosecution may use that finding against him under SORA. He claims his convictions involved "evidence acquired in contravention of constitutional guarantees and their corresponding judicially created protections." Plaintiff also argues that the SORA is unconstitutional because its registration requirements do not include any process for determining whether a specific offender is currently dangerous.

Plaintiff asked the trial court for relief consisting of declaratory judgments holding:

A. Section 12 of Michigan's Code of Criminal Procedure, MCL 769.12, is unconstitutional to the extent that it violates substantive due process protected by the Fourteenth Amendment where the statute's omission of an appropriate prohibition permits prosecutors to gain an unfair advantage at criminal trials by unfairly harassing citizens and impairing public willingness to accept the legitimate use of such power, in a scheme to coerce Plaintiff's confession to a crime that was impossible for him to commit as a matter of law;

B. SORA is unconstitutional to the extent it violates substantive due process protected by the Fourteenth Amendment where SORA's omission of an exception to the Finality rule allowed the prosecution's 2016 criminal case against Plaintiff to be built on evidence acquired in contravention of constitutional guarantees and their corresponding judicially created protections;. [sic]

C. SORA's [sic] is unconstitutional to the extent it violates substantive due process protected by the Fourteenth Amendment where SORA fails to exclude from the prosecution's use at a SORA criminal trial proof of an undisturbed invalid prior conviction to establish guilt of a new offense; and [sic]

D. SORA is unconstitutional to the extent it violates substantive due process protected by the Fourteenth Amendment where SORA's failure to provide a hearing at which the evidence might show that Plaintiff is not a threat to children and other
vulnerable persons whom SORA seeks to protect constitutes a violation of substantive due process.

E. Plaintiff is not currently dangerous.

F. Plaintiff is entitled to a hearing at which the evidence might show that he is not a threat to children and other vulnerable persons whom SORA seeks to protect and that registration is not needed when balanced against the public need to which SORA responded.
Plaintiff also sought an immediate discontinuance to his sex offender registration.

After the instant portion of the case was transferred to the Court of Claims, defendant (now only the State Police Director) moved for summary disposition. Defendant argued that the constitutionality and applicability of SORA were presently being litigated in the United States District Court for the Eastern District of Michigan, in John Doe v Snyder, et al ("Does II"), Case No. 2:16-cv-13137; a class action proceeding in which plaintiff was a member of the certified class and defendant was one of the named defendants. Defendant argued that as a consequence, plaintiff had no right to independently litigate the same claim. Defendant also argued that this Court had already held that the SORA was not, itself, unconstitutional or a violation of due process rights. It argued that plaintiff's challenge to MCL 769.12 was moot because plaintiff was not currently charged with any crime that would be affected by MCL 769.12. Finally, defendant argued that plaintiff's challenges to the SORA were, in actuality, dependent upon impermissibly collaterally challenging his convictions.

Plaintiff responded, arguing that the instant case involved different legal theories or arguments than did the pending federal action, and pointing out that he remained subject to probable criminal prosecution if he fails to comply with the SORA's registration requirements. Plaintiff argued that he was not trying to collaterally attack his 2001 convictions, because he was not challenging his convictions for purposes of SORA, but rather for purposes of MCL 769.12, which he argued expressly required judicial review of contested final orders. Plaintiff argued that defendant had completely failed to respond to his argument that SORA was unconstitutional because it had no procedure to determine current dangerousness. Plaintiff clarified that even if his 2001 convictions must stand, the fact that they would be invalid if actually subjected to scrutiny means they cannot be used as the factual predicate for another criminal offense.

Plaintiff repeatedly characterizes compliance with the registration requirements as "waiving his constitutional rights on a daily basis." Plaintiff has made it clear that his compliance with the registration requirements was, in effect, "under protest."

The Court of Claims concluded that partial summary disposition without prejudice was proper under MCR 2.116(C)(6) (another action is pending between the same parties involving the same claim), because in Does II, whether the SORA was "unconstitutional for its lack of individualized assessment" was one of the issues. However, the Court of Claims observed that plaintiff made some arguments regarding the SORA not raised in the federal action, and the federal action did not involve any challenge to the habitual offender statute. Nevertheless, the Court of Claims concluded that the remaining claims must be dismissed pursuant to MCR 2.116(C)(8) (failure to state a claim), because there was no "actual controversy" at bar. Specifically, the habitual offender statutes would, in fact, permit plaintiff to challenge the constitutional validity of a prior conviction in the event the statutes were actually applied, but any such prosecution was only hypothetical. Furthermore, notwithstanding plaintiff's argument that the habitual offender statutes could be used to coerce confessions in exchange for a promise to forego enhanced sentencing, prosecutorial discretion has been deemed constitutional. Finally, the Court of Claims observed that collateral challenges to prior pleas were limited to narrow circumstances where the defendant had been deprived of the right to counsel. The Court of Claims thus granted summary disposition in favor of defendant and denied plaintiff's motion for preliminary injunction as moot. This appeal followed.

II. STANDARDS OF REVIEW

As an initial matter, parties appearing in propria persona are not excused from providing support for their claims, but they are entitled to more generosity and lenity in construing their pleadings than would be lawyers. Estelle v Gamble, 429 US 97, 106-108; 97 S Ct 285; 50 L Ed 2d 251 (1976). We have therefore made every effort to construe plaintiff's arguments favorably and to deduce coherent arguments where his sometimes-unclear presentation permits.

A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Courts reviewing motions for summary disposition must resolve all reasonable inferences and reasonable doubts in favor of the nonmoving party. Bertrand v Alan Ford, Inc, 449 Mich 606, 617-618; 537 NW2d 185 (1995). The purpose of MCR 2.116(C)(6) is to prevent harassment in the form of multiple lawsuits between the same parties and involving the same claims, and summary disposition under that court rule requires such a duplicative suit to be presently pending. Fast Air v Knight, 235 Mich App 541, 544-549; 599 NW2d 489 (1999). The "same questions and claims" must be at issue in both cases. Id. at 546, quoting Rowry v University of Michigan, 441 Mich 1, 20-21; 490 NW2d 305 (1992) (Justice RILEY, concurring). A motion brought under MCR 2.116(C)(8) should be granted only where the complaint is so legally deficient that recovery would be impossible even if all well-pleaded facts were true and construed in the light most favorable to the non-moving party. Maiden, 461 Mich at 119. Only the pleadings may be considered when deciding a motion under MCR 2.116(C)(8). Id. at 119-120.

The interpretation and application of statutes, rules, and legal doctrines is reviewed de novo. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008). This Court reviews de novo constitutional concerns, such as whether a party has been deprived of a constitutional right, interpretation of constitutional provisions, or the constitutionality of a statute. People v Boomer, 250 Mich App 534, 538; 655 NW2d 255 (2002); People v Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011). "Whether a party has standing is a question of law that we review de novo." Manuel v Gill, 481 Mich 637, 642; 753 NW2d 48 (2008) (quotation omitted).

This Court reviews for an abuse of discretion a trial court's decision whether to grant a preliminary injunction, while it reviews for clear error any underlying factual determinations and de novo any underlying questions of law. Slis v State, ___ Mich App ___, ___; ___ NW2d ___ (2020), Docket No. 351211, slip op at p 11; lv den ___ Mich ___ (2020). "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." Id. This Court reviews de novo whether an issue is moot, meaning this Court cannot grant any relief that would practically affect the controversy. Garrett v Washington, 314 Mich App 436, 449; 886 NW2d 762 (2016). This Court will generally uphold a correct outcome even if it was arrived at on the basis of flawed reasoning. Mulholland v DEC Internat'l Corp, 432 Mich 395, 411 n 10; 443 NW2d 340 (1989).

III. PRECLUSIONARY EFFECT OF DOES II

We first conclude that defendant and the trial court were simply wrong to find that the Does II case in federal court has any preclusionary effect under MCR 2.116(C)(6). The complaint in that matter asserts that the SORA imposes strict liability and that the 2011 amendments to the SORA are not severable. Nowhere do the parties in Does II assert the argument raised by plaintiff here, that the SORA should be held unconstitutional because it fails to account for the actual dangerousness of a particular individual. A single factual allegation in the complaint mentions the lack of individualized determinations in passing, strictly as a historical detail. Indeed, the district court itself did not recognize the plaintiffs as bringing such a challenge, stating that the plaintiffs brought four claims, consisting of various due process challenges based on vagueness, a due process challenge based on strict liability, a First Amendment challenge, and "an ex post facto challenge based on Defendants' continued enforcement of the 2006 and 2011 amendments." Does II, 449 F Supp 3d 719, 725 (ED Mich, 2020). There is no overlap in the questions, so summary disposition under MCR 2.116(C)(6) was improper. Fast Air, 235 Mich App at 546.

IV. ACTUAL CONTROVERSY

Although a closer question than the preceding issue, we also conclude that there is an "actual controversy" in this matter. Defendant relies on the lack of a pending criminal proceeding against plaintiff, which is, under the circumstances, irrelevant. Defendant is correct in observing that there is no actual controversy "where the injuries sought to be prevented are merely hypothetical." McGill v Automobile Ass'n of Michigan, 207 Mich App 402, 407; 526 NW2d 12 (1994). However, where there is a realistic threat looming, an actual controversy does exist even if no concrete harm has yet occurred. Bane v Pontiac Twp, Oakland Co, 343 Mich 481, 488-489; 72 NW2d 134 (1955). Critically, "[a] threat of future enforcement may be 'credible' when the same conduct has drawn enforcement actions or threats of enforcement in the past" and the relevant enforcement entity has not disavowed future enforcement. Kiser v Reitz, 765 F3d 601, 609 (CA 6, 2014). It is clear that plaintiff intends to avoid registering, and he has only done so on the basis of an entirely reasonable desire not to prosecute his case (however meritorious he might believe it to be) from the uncomfortable vantage point of a prison cell. The Benzie County Prosecutor confirmed that it likely would prosecute plaintiff for failing to register in the future. Plaintiff has established that criminal prosecution against him for violating the SORA is not merely hypothetical.

The outcome of the Does II case complicates the above analysis. Ultimately, Does II seeks the same outcome of declaring the SORA, in relevant part, inapplicable to individuals situated similarly to plaintiff. Importantly, in Does II, the federal district court affirmatively held that the 2011 amendments to the SORA are not severable, the pre-2011 versions of the SORA cannot be independently revived, and thus, no version of the SORA may be enforced against any of the "ex post facto" class members. Doe v Snyder, 449 F Supp 3d 719, 731-735 (ED Mich, 2020). As noted, plaintiff is a member of the "ex post facto" classes. The court also found numerous provisions of the SORA unconstitutional as to all registrants. Id. at 736. Thus, ostensibly, plaintiff already has the relief he seeks: that SORA absolutely may not be enforced against him. Another federal action plaintiff filed was disposed of for this precise reason. Spencer v Gasper, United States District Court for the Western District of Michigan Case No. 1:19-cv-201 (September 28, 2020).

The confounding issue is that Does II is not actually final. Rather, the court expressly ordered that its holdings would not become effective until entry of a final judgment. Doe v Snyder, 449 F Supp 3d at 737. No such final judgment has been entered, insofar as we can determine. The court has subsequently entered a preliminary injunction forbidding the defendants (which would include defendant in this case) from enforcing, in relevant part, the registration requirements of the SORA in light of the ongoing COVID-19 crisis. Doe v Snyder, ___ F Supp 3d ___, ___ (ED Mich, April 6, 2020). Thus, although plaintiff is clearly free from the SORA's registration requirements at the moment, that status remains tenuous. It is possible that the determination in Does II could yet be revisited, or it could be reversed on further appeal. We conclude that, under the circumstances, we should resolve any doubts in favor of deciding the case on its merits. We therefore conclude that an actual controversy exists in this matter.

V. LACK OF INDIVIDUALIZED ASSESSMENT

Plaintiff argues that although there is admittedly a compelling government interest in maintaining a registry of dangerous individuals who are likely to re-offend, an offense-based approach to registration is overly broad because it includes individuals who are not, in fact, likely to re-offend. In other words, SORA's lack of individualized assessments of each particular registrant's actual dangerousness is unfair, and also counterproductively demonizes some offenders while minimizing others. We recognize that plaintiff presents a reasonable argument for a better way to approach sex offender registration, but we are not persuaded that the SORA is therefore unconstitutional.

Plaintiff implicitly concedes that the SORA is the kind of social legislation examined under the "rational basis" test, which requires a classification to be arbitrary. See Wysocki v Kivi, 248 Mich App 346, 354; 639 NW2d 572 (2001). The wisdom, necessity, propriety, mathematical precision, and possibility of some amount of inequity are therefore all irrelevant. See Zdrojewski v Murphy, 254 Mich App 50, 80; 657 NW2d 721 (2002). Indeed, as a general matter, the courts may not concern themselves with whether "another statutory scheme might appear to have been wiser or would produce fairer results." Smith v Cliffs on the Bay Condominium Ass'n, 463 Mich 420, 430; 617 NW2d 536 (2000). Rather, a statute will survive rational basis scrutiny "if the legislative judgment is supported by any set of facts, either known or which could reasonably be assumed, even if such facts may be debatable." Harvey v State, Dep't of Mgmt and Budget, Bureau of Retirement Svcs, 469 Mich 1, 7; 664 NW2d 767 (2003). "The fact that a statute may appear undesirable, unfair, unjust, or inhumane does not of itself render a statute unconstitutional and empower a court to override the Legislature." Boomer, 250 Mich App at 538.

Plaintiff's argument relies in part on three cases from other states. Opinions from other jurisdictions are not binding on us, but they may be persuasive. Est of Voutsaras v Bender, 326 Mich App 667, 676; 929 NW2d 809 (2019). However, the cases cited by plaintiff have little persuasive value under the circumstances.

In Doe v Attorney General, 426 Mass 136, 139-140; 686 NE2d 1007, 1010 (1997), the plaintiff raised a due process challenge to the Massachusetts sex offender registry law on the ground that he should have been entitled to an individualized determination that he was actually a threat to the persons the law sought to protect. The Massachusetts Supreme Court held that public dissemination of the plaintiff's information on the sex offender registry did cause him harm, that there was nothing inherent in the crime of which the plaintiff was convicted that would suggest the plaintiff was a danger to persons intended to be protected by the registration law, and that the law offered no procedure for challenging the registration requirement. Id., 426 Mass at 144-145; 686 NE2d at 1013-1014. However, Michigan's SORA does provide a means for petitioning to discontinue registration in MCL 28.728c. Some of the bases for discontinuance of registration are concerned with the registrant personally, such as whether he or she has been convicted of subsequent felonies. Thus, Michigan's SORA does provide a procedure for challenging the registration requirement, unlike the registry law struck down by the Massachusetts Supreme Court.

In State v Bani, 97 Hawai'i 285, 287; 36 P3d 125, 1257 (2001), the Supreme Court of Hawai'i struck down the public notification provision of Hawai'i's sex offender registry law based on the state's own constitution. The court expressed concern that "not all offenders present a significant danger to the public," but the Hawai'i registry law automatically applied to all offenders for life. Id., 97 Hawai'i at 297; 36 P3d at 1267. It concluded that "the State must allow a registered sex offender a meaningful opportunity to argue that he or she does not represent a threat to the community and that public notification is not necessary, or that he or she represents only a limited threat such that limited public notification is appropriate." Id., 97 Hawai'i at 298; 36 P3d at 1268. However, the registration law at issue in Bani, unlike Michigan's scheme, provided absolutely no variation in treatment for any offender. Id., 97 Hawai'i at 290-291; 36 P3d at 1260-1261.

Finally, plaintiff relies on Millard v Rankin, 265 F Supp 3d 1211, 1235 (D Colo, 2017), for its holding that Colorado's sex offender registration scheme was arbitrary. However, that holding was reversed on appeal and is therefore no longer "good law" even if it had been binding upon us. Millard v Camper, 971 F 3d 1174, 1185-1186 (CA 10, 2020). In contrast, this Court has previously upheld registration based on a legislative determination that persons who committed certain crimes are sufficiently dangerous to warrant registration. People v Bosca, 310 Mich App 1, 81; 871 NW2d 307 (2015). That conclusion is binding upon us. MCR 7.215(J)(1).

We reiterate that plaintiff's argument cogently sets forth a good reason why an individualized assessment of actual dangerousness would be more useful, more effective, and more fair. Furthermore, this Court has expressed concern that registration under the SORA may effectively brand a person a "sex offender" even where the underlying crime was not, in fact, actually sexual in nature. Bosca, 310 Mich App at 91-93. However, although we encourage the Legislature to include such an assessment in any future amendments it makes to the SORA in light of Does I and Does II, we remain unconvinced that the SORA is unconstitutional without such an assessment, rather than merely less-than-ideally optimized.

VI. OPPORTUNITY TO REBUT INVALID CONVICTION

Plaintiff argues that he should be permitted to rebut the prosecution's evidence in a prosecution for violating the SORA. We agree. However, plaintiff particularly argues that he should be able to do so by showing that an underlying conviction was invalid. Under the circumstances of this case, we disagree.

Plaintiff has repeatedly asserted that he is not trying to collaterally attack his 2001 convictions. However, the effective gravamen of his argument is that he should be able to show that he should not have been convicted in 2001 or that he was actually innocent of the charges in 2001. That is exactly the definition of a collateral attack: "[a]n impermissible collateral attack occurs whenever challenge is made to judgment in any manner other than through a direct appeal." People v Iannucci, 314 Mich App 542, 544-545; 887 NW2d 817 (2016). Thus, plaintiff's argument is really that he should have a right to collaterally attack his plea-based convictions. We agree in part. However, collateral attacks are only permitted under narrow circumstances, none of which are present in this matter.

Plaintiff makes references to his conviction being "constitutionally invalid." However, the case law uniformly establishes that a "constitutionally invalid" conviction means a conviction obtained in violation of a defendant's right to counsel. People v Moore, 391 Mich 426, 436-440; 216 NW2d 770 (1974); People v Carpentier, 446 Mich 19, 28-30; 521 NW2d 195 (1994). This Court has described right-to-counsel challenges as having a "unique" retroactivity despite what would ordinarily be an impermissible collateral attack. People v Pangburn, 81 Mich App 324, 327; 265 NW2d 138 (1978), lv den in relevant part 404 Mich 828 (1979). In US v Tucker, 404 US 443, 444-445, 448-449; 92 S Ct 589; 30 L Ed 2d 592 (1972), the United States Supreme Court held the sentences at issue invalid narrowly and exclusively because the defendant had been unrepresented by counsel, which precluded use of those convictions to enhance later sentences. Plaintiff was, in fact, represented by counsel at and before his plea. Thus, he cannot collaterally attack his conviction on the basis of having been denied the right to counsel. Furthermore, our Supreme Court has held that any such collateral attacks must be timely, and that guilty pleas "sanitize" many preceding errors. People v Roseberry, 465 Mich 713, 719-721; 641 NW2d 558 (2002).

Plaintiff also relies on Michigan v Harvey, 494 US 344, 348-352; 110 S Ct 1176; 108 L Ed 2d 293 (1990), in which the United States Supreme Court upheld the exclusionary rule for statements obtained in violation of Fifth or Sixth Amendment rights but held that such statements can be used for rebuttal purposes. Plaintiff specifically relies on the statement that "[t]he prosecution must not be allowed to build its case against a criminal defendant with evidence acquired in contravention of constitutional guarantees and their corresponding judicially created protections." Id., 494 US at 351. That was immediately followed up by stating that "use of statements so obtained for impeachment purposes is a different matter." Id. In any event, as we discuss, the "evidence" at issue is the conviction itself rather than the facts underlying the conviction. Thus, Harvey does not create a new rule permitting unlimited collateral attacks on prior convictions.

Otherwise, it is well-known that a court's subject-matter jurisdiction is always open to attack at any time, whereas an improper exercise of that jurisdiction is not. In re Ferranti, 504 Mich 1, 22-23; 934 NW2d 610 (2019). However, the Oakland Circuit Court undoubtedly had subject-matter jurisdiction to adjudicate a CSC-II criminal charge, so no possible collateral attack may be had no that basis. We think the Oakland Circuit Court did violate the plea-taking rules because it only asked plaintiff to confirm legal conclusions, rather than eliciting an actual factual basis for plaintiff's pleas. MCR 6.302(D)(1); People v Haack, 396 Mich 367, 371-378; 240 NW2d 704 (1976); People v White, ___ Mich App ___, ___; ___ NW2d ___ (2020), Docket No. 346901, slip op at pp 4-5. However, a collateral attack on a conviction may not be based on a failure of the trial court to adhere to plea-taking requirements where the defendant was represented by counsel. People v Ingram, 439 Mich 288, 293-295; 484 NW2d 241 (1992). Plaintiff's arguments—to the effect that he should be able to revisit his conviction—are entirely arguments that could only have been made on direct appeal, not on collateral review.

Plaintiff's arguments are substantively unavailing in any event. Plaintiff argues that he did not have any way to know that "sexual contact" meant "touching," because MCL 750.520c, the CSC-II statute, makes no reference to MCL 750.520a, in which "sexual contact" is defined. However, a statute provides fair notice and "is sufficiently definite if its meaning can fairly be ascertained by reference to judicial interpretations, the common law, dictionaries, treatises, or the commonly accepted meanings of words." People v Noble, 238 Mich App 647, 652; 608 NW2d 123 (1999). Where a clear definition is provided within an act, a statute within that act using the term is not unconstitutionally vague. See People v Newton, 257 Mich App 61, 65-68; 665 NW2d 504 (2003). The fact that "sexual contact" is defined in MCL 750.520a, even if it is not explicitly referenced within MCL 750.520c, is simply fatal to plaintiff's argument. Furthermore, plaintiff does not explain how concludes that the common dictionary-based understanding of "sexual contact" would mean "a meeting of or related to the sexes." The word "contact" can mean some kind of communication or association, but also refers to touching. Thus, there is no obvious or potentially confusing discrepancy between the dictionary definition and the statutory definition of "sexual contact." Plaintiff provides no convincing argument that his plea was unknowing, nor does he provide any indication that it was involuntary.

Pursuant to 2000 PA 505, at the time of plaintiff's convictions in 2001, "sexual contact" for purposes of criminal sexual conduct was defined by MCL 750.520a(l) as "includ[ing] the intentional touching of the victim's or actor's intimate parts or the intentional touching of the clothing covering the immediate area of the victim's or actor's intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification, done for a sexual purpose, or in a sexual manner for [irrelevant other reasons]." --------

Finally, we observe that plaintiff is not precluded from rebutting the prosecution's evidence against him. For example, plaintiff would have the right to require the state to provide proper proof that he was, in fact, convicted. It would also mean that he has the right to require the state to prove that he did, in fact, actually violate an applicable registration requirement. A prosecution for violation of the SORA is premised on the fact of the conviction, not the facts underlying the conviction. The SORA is not unconstitutional for failing to provide plaintiff with an unlimited number of collateral "bites at the apple."

VII. SENTENCE ENHANCEMENT

Plaintiff argues that he should be able to dispute the propriety of a conviction used to enhance a sentence under MCL 769.12, mostly for the same reasons discussed above. Also for the same reasons discussed above, we disagree. However, plaintiff further argues that prosecutors should not be permitted to coerce guilty pleas by holding over defendants' heads the threat of an automatically enhanced sentence should they exercise their rights to a trial. This is, however, essentially a policy argument. More importantly, defendant correctly notes that it has been thoroughly rejected by the courts.

Prosecutors' charging discretion and the propriety of making plea agreements have been upheld as constitutionally permissible, absent affirmative proof that the prosecutor actively sought to punish a defendant for asserting his or her rights. See People v Perry, 317 Mich App 589, 595-596; 895 NW2d 216 (2016). A prosecutor could engage in an abuse of discretion by "overcharging," but such an abuse of discretion would minimally require evidence that the prosecutor sought grossly inapplicable charges, People v Hardesty, 67 Mich App 376, 378; 241 NW2d 214 (1976); People v McCracken, 124 Mich App 711, 713-716; 335 NW2d 131 (1983), especially where the prosecutor has an established history of doing so for seemingly emotional or other improper reasons, cf. People v Carmichael, 86 Mich App 418, 422-423; 272 NW2d 667 (1978), People v Evans, 94 Mich App 4, 10-11; 287 NW2d 608 (1979). Generally, a prosecutor does not impermissibly overcharge unless "the prosecutor acted unconstitutionally, illegally, or ultra vires" and thus did more than merely choose to bring the highest possible charges. People v Barksdale, 219 Mich App 484, 486-489; 556 NW2d 521 (1996). It is not per se improper for a prosecutor to pursue additional or greater charges at a trial if plea negotiations are unsuccessful. People v Jones, 252 Mich App 1, 7-8; 650 NW2d 717 (2002).

As noted above, we believe the trial court erred by failing to elicit facts from plaintiff when taking his plea, from which the court should have satisfied itself that plaintiff engaged in sexual contact with the victims. However, as also discussed, that error is not grounds for a collateral attack, and a guilty plea otherwise sanitizes most errors. Otherwise, there is simply nothing unconstitutional about prosecutors having the discretion to seek sentencing enhancement for habitual offenders and offer such defendants dismissal of that enhancement in exchange for entering a plea.

VIII. PRELIMINARY INJUNCTION

Finally, plaintiff argues that he is entitled to a preliminary injunction while this matter is pending. We disagree. Plaintiff's claims turn, in substance, on (1) arguments that have long been rejected or are inapplicable to Michigan, or (2) on being able to revisit his convictions in contravention of equally long-established precedent. Furthermore, although the holding in Does II is not final, plaintiff is for the moment protected by the federal district court's injunction from defendant enforcing the SORA against him. Although we find some of plaintiff's arguments reasonable and sympathetic, we cannot grant him substantive relief, so he also cannot be entitled to a preliminary injunction—especially where an injunction achieving the same result is seemingly already in effect. We therefore affirm the trial court's denial of plaintiff's requested injunction.

IX. CONCLUSION

Affirmed. We direct that the parties shall bear their own costs. MCR 7.219(A).

/s/ Kathleen Jansen

/s/ Karen M. Fort Hood

/s/ Amy Ronayne Krause


Summaries of

Spencer v. State Police Dir.

STATE OF MICHIGAN COURT OF APPEALS
Nov 19, 2020
No. 352539 (Mich. Ct. App. Nov. 19, 2020)
Case details for

Spencer v. State Police Dir.

Case Details

Full title:WILLIAM SIM SPENCER, Plaintiff-Appellant, v. STATE POLICE DIRECTOR…

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Nov 19, 2020

Citations

No. 352539 (Mich. Ct. App. Nov. 19, 2020)