Michigan sex offenders seek individual liability for enforcement of vacated rules

CINCINNATI (CN) — A class of anonymous sex offenders urged the Sixth Circuit on Wednesday to reverse a judgment that granted several state officials immunity.

The class had brought a federal lawsuit in 2021 over a series of amendments to Michigan's Sex Offenders Registration Act, otherwise known as SORA.

Importantly, the 2006 and 2011 amendments — which prohibited sex offenders from residing, working or loitering within 1,000 feet of a school and imposed onerous in-person reporting requirements — had already been held unconstitutionally vague in two previous lawsuits.

Going after Governor Gretchen Whitmer and Col. Joseph Gaspar, who directs the Michigan State Police, for damages, the class said the officials are liable in their individual capacities for enforcing provisions after court orders had invalidated them. The class also named Governor Rick Snyder as a defendant as well as the former director of the state police, Kriste Etue.

U.S. District Judge Victoria Roberts, a Clinton appointee, dismissed the suit in September 2022, finding that all four were entitled to sovereign immunity.

Roberts agreed with the officials that the state was the "real party in interest" in the lawsuit and emphasized the relief granted in the previous lawsuits was rendered exclusively against the state.

Pushing for a Sixth Circuit reversal, the class argued that its complaint made clear the officials were being sued because of their actions as individuals to allow continued enforcement of the unconstitutional SORA amendments, which prevents the application of sovereign immunity.

"As the Supreme Court stated in Marbury v. Madison," they wrote in a brief, "'the very essence of civil liberty certainly consists in the right of every individual to claim protection of the laws, whenever he receives an injury.'

"Nothing changed for plaintiffs after [the initial case] because that case was not a class action and defendants refused to accept that old SORA was constitutionally defective and the defendants in [the second case] were sued in their official capacity for injunctive relief only."

The officials responded meanwhile with language from the complaint against them, emphasizing for example its claim that "the State of Michigan continued to subject tens of thousands of registrants to retroactive punishments."

"Artful pleading cannot circumvent the true gravamen of the complaint," the officials argued in a brief to the appeals court.

The panel prodded the lawyer for the Doe plaintiffs about how he can establish individual capacity claims against the defendants.

"How is the law clearly established that the governors had a duty to do something?" Senior U.S. Circuit Judge David McKeague asked.

"Deliberate indifference is the appropriate standard," answered Paul Matouka of the Oliver Law Group in Troy, Michigan.

McKeague, a George W. Bush appointee, also asked if a governor can be held liable anytime a state actor does something wrong.

"You have to take the context into account," Matouka answered. "When the constitutional violations continue for decades or years, that does impose liability."

Senior U.S. Circuit Judge Danny Boggs, a Ronald Reagan appointee, pointed out much of the complaint filed by Matouka's clients was written in the "passive voice," and asked the attorney why the individuals who directly enforced the registration requirements were not named as defendnats.

"That turns into a 'whack-a-mole' problem," Matouka said. "No one from the top with the authority to say so, said, 'this needs to stop,' or 'this is unconstitutional.'"

Michigan Assistant Attorney General Scott Damich argued on behalf of the state officials, denying that his clients somehow endorsed the continued enforcement of the registration requirements.

"The state was not thumbing its nose at any court decisions," Damich said.

McKeague seemingly sided with the lower court's decision — that "just saying it's an individual capacity suit doesn't make it so," he said — but he asked for clarification from the state's attorney.

Damich emphasized the complaint included language that the state itself enforced the registration requirements — not the executive branch — and told the panel officials "were enforcing the law as they understood it at the time."

During Matouka's rebuttal, McKeague continued to seek answers on the question of individual and official capacity and asked the attorney the exact relief sought by his clients.

"Monetary damages only," Matouka said. "We couldn't seek declaratory and injunctive relief because the statute is no longer on the books."

U.S. Circuit Judge Amul Thapar, a Donald Trump appointee, rounded out the panel.

No timetable has been set for the court's decision.

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