John DOES # 1-5 and Mary Doe, Plaintiffs, v. Richard SNYDER and Col. Kriste Etue, Defendants, 101 F. Supp. 3d 672

OPINION AND ORDER RESOLVING MOTIONS FOR JUDGMENT ROBERT H. CLELAND, District Judge. Plaintiffs John Does # 1-5 and Mary Doe bring the instant action against Governor Richard Snyder and Director of the Michigan State Police Colonel Kriste Etue, named in their official capacities, challenging Michigan’s Sex Offenders Registration Act (“SORA”), as amended in 2011 and 2013. Both parties have filed Rule 52 motions for judgment on the stipulated facts and records submitted by the parties. (See Dkt. ## 90-95).

Plaintiffs seek a declaratory judgment and permanent injunction, and ask the court to grant judgment in their favor on Counts IV, V, VI, VII, and IX of their First Amended Complaint. (Dkt. # 96, 5669-70.) Defendants move the court to find Plaintiffs’ challenges without merit and grant judgment in their favor. (Dkt. # 97, Pg. ID 5721.) The parties have willingly waived their right to a full trial in their Rule 52 motions and have stipulated that the court may enter judgment based on the record submitted by the parties.

For the reasons set forth below, Plaintiffs’ motion will be granted in part and denied in part and Defendants’ motion will be granted in part and denied in part. I. BACKGROUND A. Statutory History Michigan enacted SORA in 1994. 1994 Mich. Pub. Acts 295. The 1994 Act established a confidential database containing information about sex offenders that was available only to law enforcement. 94 Mich. Pub. Acts 295, § 10. SORA has been amended numerous times. See 1996 Mich. Pub. Acts 494; 1999 Mich. Pub. Acts 85; 2002 Mich. Pub. Acts 542; 2004 Mich. Pub. Acts 238, 239, 240; 2005 Mich. Pub.

Acts 121, 127, 132; 2006 Mich. Pub. Acts 46; 2011 Mich. Pub. Acts 17, 18; 2013 Mich. Pub. Acts 149. As of April 1997, SORA requires law enforcement agencies to make certain registration information available for public inspection, 1996 Mich. Pub. Acts 494, § 10(2), and following the 1999 amendments to SORA, registry information became available through the Internet. See 1999 Mich. Pub. Acts 85, §§ 8(2), 10(2), and 10(3).

The amendments between 2002 and 2006, inter alia, increased reporting requirements for registrants; introduced a one-time registration fee; removed the registration requirement for certain individuals assigned to youthful trainee status; prohibited registrants from working, residing, or loitering within 1,000 feet of a school; and created a program whereby members of the public could be notified electronically when a sex offender moved into a particular zip code. See generally 2002 Mich. Pub. Acts 542; 2004 Mich. Pub. Acts 238, 239, 240; 2005 Mich. Pub. Acts 121, 127, 132; 2006 Mich. Pub. Acts 46.

The 2011 amendments significantly altered SORA to comply with the federal Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16901 et seq. In its current form, SORA categorizes registrants into three tiers which determine the length of time that individuals must register and the frequency with which they must report. Mich. Comp. Laws §§ 28.722(r)-(w); 28.725(10)-(13). Tier classifications are based solely on a registrant’s offense and do not factor in an individualized determination of risk.

Tier I offenders must register and comply with SORA obligations for fifteen years; Tier II offenders must register and comply with SORA obligations for twenty-five years; and Tier III offenders must register and comply with SORA for life. Mich. Comp. Laws §§ 28.725(10)-(13). The most recent amendments became effective while this case was pending and now require registrants to pay a pay a $50 annual registration fee. 2013 Mich. Pub. Acts 149. B.

Plaintiffs All six Plaintiffs are Michigan residents who are Tier III offenders and thus required by law to register as sex offenders and comply with SORA for life. (Dkt. # 90, Pg. ID 3729.) Following are brief descriptions of Plaintiffs and their offenses.

In 1990, after losing his job at McDonald’s, Doe # 1 attempted to rob his former employer. (Id. at 3737.) During the robbery, Doe # 1 forced the McDonald’s manager and her fourteen-year-old son into the restaurant; when the manager did not open up the safe, Doe # 1 struck the manager and kicked her son. (Id.) The manager and her son were able to escape. (Id.) Doe # 1 was charged with eleven felony counts.

He pleaded no contest to kidnapping (for holding the fourteen-year-old child against his will) and pleaded guilty to the other charges, including armed robbery. (Id.) In 1991, Doe # 1 was sentenced to twenty-two to forty years in prison. (Id. at 3738.) He was paroled in November 2009 and completed his parole in November 2011. (Id. at 3739.) Although Doe # l’s criminal offense lacked an overtly sexual component, under the 2011 amendments to SORA, he is classified as a Tier III offender and is required to comply with SORA for life because he was convicted of kidnapping a minor. (Id.) He has two adult children and one toddler, and he co-parents his fíancée’s teenage daughter. (Id.) Doe # 2 pleaded guilty under the Holmes Youthful Trainee Act (“HYTA”), Mich.

Comp. Laws § 750.520d(l)(a), to criminal sexual conduct III after having a sexual relationship with his fourteen-year-old “girlfriend” in 1996 when he was eighteen years old. (Id. at 3741.) His plea was based on the prosecutor’s promise that his records would be sealed. (Id. at 3743.) Under the HYTA, Doe #2 was assigned the status of “youthful trainee” and sentenced to two years probation. (Id. at 3742.) After completing his probation, his case was dismissed without conviction being entered pursuant to Mich. Comp. Laws § 762.14(1).

Designation as a “youthful trainee” is included in the definition of “convicted” under SORA, Mich. Comp. Laws § 28.722(b). Doe # 2 is classified as a Tier III offender and must therefore comply with SORA for life. (Id. at 4745.) Doe # 2 currently has a teenage daughter.

The daughter’s mother has full custody, and Doe # 2 has weekend visitation rights. (Id. at 3747.) In 1998, at the age of nineteen, Doe # 3 had a sexual relationship with a fourteen year old. (Id. at 3748.) Doe # 3 pleaded guilty to attempted criminal sexual conduct and was sentenced to four years of probation under the HYTA. (Id. at 3750.) During his last year on probation, Doe # 3 failed to timely register under SORA. (Id. at 3751.) His HYTA status was revoked, and a conviction was entered. (Id.) Doe # 3 has a nine-year-old son, a six-year-old son, and an infant son. (Id.) He was originally required to register for a period of twenty-five years on a non-public registry, but was reclassified as a Tier III offender in 2011. (Id. at 3750, 3752.) Doe #4 pleaded guilty to attempted criminal sexual conduct III in 2006 after having a sexual relationship with a female under the age of sixteen, who he met in a nightclub restricted to those aged eighteen years and older. (Id. at 3752-53.) He was twenty three years old at the time. (Id. at 2752.) Doe # 4 was sentenced to five years probation, which he completed. (Id. at 3753.) He is currently involved in a romantic relationship with his victim, who is now over eighteen years old.

They have a seven-year-old daughter and an infant child, and Doe # 4 has two other children as well. (Id. at 3754.) In 2011, Doe # 4 was classified as a Tier III offender, extending his period of registration from twenty-five years to life. (Id.) Doe # 5 was added to this action by a stipulated order entered on August 27, 2013. (Dkt.# 34.) In 1980, he was convicted of criminal sexual conduct III and sentenced to two to fifteen years of imprisonment. (Dkt. # 90, Pg.

ID 3757.) At the time of the conduct, Doe # 5 was twenty one years old and the victim was seventeen years old. (Id.) The victim testified at trial that the sexual conduct was noncon-sensual, and Doe # 5 and his sister testified that it was consensual. (Id.) Doe # 5 served approximately twenty-one months of his sentence. (Id.) He was not required to register as a sex offender until 2011 after he pleaded guilty to larceny pursuant to SORA’s “recapturé” provisions, added by the 2011 amendments, which require registration for eligible recidivists who are convicted of any additional felony after July 2011. See Mich.

Comp. Laws § 28.724(5). (Dkt. # 90, Pg. ID 375.) Doe # 5 did not timely register and was therefore cited for a probation violation and jailed for ninety days. (Id. at 3759.) He has children and grandchildren. (Id. at 3761) Ms. Doe was convicted in Ohio of one count of unlawful sexual conduct with a minor in 2003 for having a sexual relationship with a fifteen-year-old male when she was twenty-nine years old. (Id. at 3761-62.) She was sentenced to three years in prison, but was granted judicial release after serving less than eight months of her sentence. (Id. at 3763-65.) Ms.

Doe was assigned to the lowest risk level of Ohio’s sex offender registry, which required address verification once a year for ten years. (Id. at 3763-64.) She moved to Michigan in 2004 after her judicial release. She was initially required to register quarterly for twenty-five years, but was reclassified as a Tier III offender in 2011. (Id. at 3765-66.) Ms. Doe has a teenage daughter, step-children, and three grandchildren under the age of ten, and she is expecting another grandchild. (Id.) C.

The Constitutional Challenges Plaintiffs claim that the retroactive nature of SORA, its extensive reporting requirements and prohibitions, and its broad application violate their constitutional rights. Their First Amended Complaint seeks declaratory and injunctive relief enjoining Defendants from enforcing certain provisions of SORA and barring the retroactive application of the 2011 and 2013 amendments to Plaintiffs. (Dkt. # 46, Pg.

ID 903-04, 911.) The complaint alleges nine counts: (1) violation of the Ex Post Facto Clause by the retroactive application of the 2011 amendments (Count I); (2) violation of Plaintiffs’ fundamental rights to travel protected by the Due Process Clause (Count II); (3) violation of Plaintiffs’ fundamental right to engage in common occupations of life protected under the Due Process Clause (Count III); (4) violation of Plaintiffs’ right to direct the education and upbringing of their children under the Due Process Clause (Count IV); (5) violation of Plaintiffs’ right to free speech as protected by the First Amendment incorporated through the Fourteenth Amendment (Count V); (6) violation of the Due Process Clause because the Act is retroactive and “harsh or oppressive or [ ] violates principles of fundamental fairness” (Count VI); (7) violation of the Due Process Clause because certain provisions are vague, impossible to comply with, or wrongly impose strict liability (Count VII); (8) violation of the Headlee Amendment to the Michigan Constitution which prohibits the state legislature from requiring local governments to increase their level of participation in a state program unless the increase is fully funded by the state (Count VIII); and (9) violation of the Ex Post Facto Clause by the retroactive application of the 2013 amendments (Count IX). (Dkt. #46, Pg.

ID 896-902, 910-11.) Defendants filed a motion to dismiss Plaintiffs’ original complaint. The court granted in part and denied in part the motion, dismissing with prejudice Counts I, II, and III, dismissing with prejudice VI inasmuch as it applies to the retroactive application of SORA to Does ## 1 and 2, and dismissing without prejudice Count VIII. The motion was denied with respect to Counts IV, V, and VII. It was denied with respect to Count VI inasmuch as it applies to the retroactive extension the lifetime registration requirement to Does ## 3 and 4 and Ms. Doe. (Dkt. # 27, Pg.

ID 703-04) (published at Does v. Snyder, 932 F.Supp.2d 803, 824 (E.D.Mich.2013)). Count IX was added to the Amended Complaint after the court entered its order disposing of Defendants’ motion to dismiss. II. STANDARD Both parties have moved for a

summary bench trial on the records submitted by the parties, in the form of a joint statement of facts and accompanying exhibits (Dkt. ## 90-95). “[A] district court may decide a case by

summary bench trial upon stipulation of the parties as long as the parties have willingly foregone their right to a full trial.” Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 142-43 (2d Cir.1998); see May v. Evansville-Vanderburgh Sch. Corp., 787 F.2d 1105, 1115-16 (7th Cir.1986); Nielsen v. W. Elec. Co., 603 F.2d 741, 743 (8th Cir.1979); Starsky v. Williams, 512 F.2d 109, 112-13 (9th Cir.1975).

Here, Plaintiffs and Defendants willingly waived their right to a full trial in their motion papers and have requested that the court enter judgment based on the record before it. (Dkt. ## 96, 97.) When reviewing Rule 52 motions, “the court does not view the evidence in the light most favorable to the nonmoving party, as it would in passing on a Rule 56 motion for

summary judgment or a Rule 50(

a) motion' for judgment as a matter of law; instead, it exercises its role as a factfinder.” United States v. $242,484.00, 389 F.3d 1149, 1172 (11th Cir.2004). III. DISCUSSION A. Count VII: Vagueness, Impossibility, and Strict Scrutiny In Count VII, Plaintiffs claim SORA violates the Due Process Clause of the Fourteenth Amendment because provisions of SORA are improperly vague, impossible to comply with, and/or wrongly impose strict liability. In particular, Plaintiffs challenge (1) the prohibition on working within a student safety zone, Mich. Comp.

Laws §§ 28.733- 734; (2) the prohibition on loitering within a student safety zone, Mich. Comp. Laws §§ 28.733- 734; (3) the prohibition on residing within a student safety zone, Mich. Comp. Laws §§ 28.733, 28.735; (4) the requirement to immediately report changes in personal data, Mich. Comp. Laws § 28.725; (5) the requirement to report educational information, Mich. Comp. Laws § 28.724a; and (6) the requirement to maintain a driver’s license or state personal identification card with a current address, Mich. Comp. Laws § 28.725a(7). (Dkt. # 46, Pg. ID 900-01.) 1.

Void for Vagueness “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). The Supreme Court’s vagueness doctrine has two primary goals: (1) “to ensure fair notice to the citizenry” and (2) “to provide standards for enforcement by the police, judges, and juries.” Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1104 (6th Cir.1995). In light of these goals, courts have developed a two-part test to determine if a statute is unconstitutionally vague.

First, the court must determine whether the law gives a person “of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned, 408 U.S. at 108, 92 S.Ct. 2294. In reviewing a vagueness challenge, the court considers whether “ordinary people, exercising ordinary common sense, can understand [a statutory prohibition] and avoid conduct which is prohibited, without encouragement of arbitrary and discriminatory enforcement.” United States v. Salisbury, 983 F.2d 1369, 1378 (6th Cir.1993).

Second, the court must evaluate whether the statute provides sufficiently “explicit standards for those' who apply them” or whether, due to a statute’s vagueness, it “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis.” Grayned, 408 U.S. at 108-09, 92 S.Ct. 2294. “The standards of enforcement must be precise enough to avoid ‘involving so many factors of varying effect that neither the person to decide in advance nor the jury after the fact can safely and certainly judge the result.’” Columbia Natural Res., 58 F.3d at 1105 (quoting Cline v.

Frink Dairy Co., 274 U.S. 445, 465, 47 S.Ct. 681, 71 L.Ed. 1146 (1927)). “The degree of vagueness that the Constitution tolerates ... depends in part on the nature of the enactment.” Vill. of Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). “The [Supreme] Court has expressed greater tolerance of enactments with civil rather than criminal penalties ..., recognized that a scienter requirement may mitigate a law’s vagueness ..., [and stated that] perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights.” Id. at 498-99, 102 S.Ct. 1186. The challenged provisions of SORA impose criminal sanction for non-compliance, Mich. Comp.

Laws §§ 28.729, 734(2), 735(2), make Plaintiffs strictly liable for failure to comply with certain requirements and prohibitions, Mich. Comp. Laws §§ 28.725a, 729(2), 734-.735, and implicate Plaintiffs’ First Amendment right to free speech and their fundamental right to participate in the education and upbringing of their children, see infra Sections III.B and III.C. Accordingly, the court’s standard for vagueness will be more exacting.

On the other hand, the rule of lenity reduces the risk of unfair notice and unclear enforcement standards. “[A]s a sort of ‘junior version of the vagueness doctrine,’ the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.” United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). Where possibly ambiguous provisions of SORA are made clear when construed in light of the rule of lenity, the vagueness doctrine would not void those provisions.

Therefore, the court applies the two-part test for vagueness with due consideration to SORA’s enhanced need for definiteness and SORA’s reduced risk of vagueness. It is unclear from Plaintiffs’ complaint whether their vagueness claim was intended as a facial or as applied challenge. However, “it is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” United States v. Krumrei, 258 F.3d 535, 537 (6th Cir.2001) (quoting United States v.

Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975)); see also Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) (“First Amendment freedoms are not infringed by [the statute at issue], so the vagueness claim must be evaluated as the statute is applied to the facts of this case.”); United States v.

Kernell, 667 F.3d 746, 750 (6th Cir.2012) (“For challenges to the statute that do not implicate First Amendment concerns, the defendant bears the burden of establishing that the statute is vague as applied to his particular case, not merely that the statute could be construed as vague in some hypothetical situation.” (internal quotation marks and citation omitted)). But see City of Chicago v.

Morales, 527 U.S. 41, 55, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (plurality) (finding that a facial vagueness challenge was appropriate against “a criminal law that contains no mens rea requirement and infringes on constitutionally protected rights”) (citation omitted); Belle Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553, 557 (6th Cir.1999) (“[E]ven in cases not involving First Amendment rights, we have recognized that courts may engage in a facial analysis where the enactment imposes criminal sanctions.”).

Plaintiffs’ void for vagueness challenges only invoke the First Amendment with regard to the Internet use reporting requirements. (See Dkt. #46, Pg. ID 900-01; Dkt. # 96, Pg. ID 5678-90; Dkt. # 99, Pg. ID 5816-23). With regard to all of the other vagueness challenges, “[Plaintiffs] bear[ ] the burden of establishing that the statute is vague as applied to this particular case, not merely that the statute could be construed as vague in some hypothetical situation.” Krumrei, 258 F.3d at 537 (citing United States v. Avant, 907 F.2d 623, 625 (6th Cir.1990)).

Nonetheless: When contesting the constitutionality of a criminal statute, it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights. When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. Babbitt v.

United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (internal quotation marks and citations omitted). Thus, to the extent that Plaintiffs have curtailed their conduct, because it is unclear whether such conduct violates SORA, the court finds a constitutional vagueness challenge proper. i. Geographic Exclusion Zones Plaintiffs first challenge SORA’s geographic exclusion zones as void for vagueness. SORA makes it a crime for a registrant to work, “loiter,” or reside “within” a “student safety zone.” Mich. Comp. Laws §§ 28.734(1)(a)-(b), 28.735(1).

SORA defines “school safety zone” as “the area that lies 1,000 feet or less from school property.” Mich. Comp. Laws § 28.733(f). SORA defines “school property” to mean: [A] building, facility, structure, or real property owned, leased, or otherwise controlled by a school, other than a building, facility, structure, or real property that is no longer in use on a permanent or continuous basis, to which either of the following applies: (I)[i]t is used to impart educational instruction[, or] (ii)[i]t is for use by students not more than 19 years of age for sports or other recreational activities. Mich. Comp.

Laws § 28.738(e). Plaintiffs contend that the term “school safety zone” is unconstitutionally vague because SORA provides insufficient guidance for how the 1,000 feet zones should be measured. (Dkt. #96, Pg. ID 5681-86.) Plaintiffs note that the zones are not physically marked, and registrants are not provided with maps demarking the boundaries. Without demarcation or maps, the typical registrants are unable to identify the zones because they lack the software and data to map the zones, and Michigan has not provided a list of school properties or parcel data to registrants or law enforcement. (Dkt. #96, Pg.

ID 5681-82.) Additionally, Plaintiffs argue that the term is vague because there is no guidance as to whether the 1,000 feet distance should be measured “point to point” or “property-line to property line” nor whether it should be measured “as the crow flies or as people actually travel.” (Dkt. # 96, Pg.

ID 5681-82.) “Because plaintiffs cannot know where .the zones are, they must ‘over-police’ themselves, erring on the side of caution.” (Id. at 5684.) For example, Doe #4’s partner testified that Doe # 4 does not live with her and their two children because their house is down the street from a school, and she was not sure if the school was within 1,000 feet of her home. (Dkt. # 90, Pg. ID 3863.) Likewise, Doe # 1, Doe # 3, and Ms. Doe testified that they had difficulties searching for new homes because they were unable to accurately calculate the 1,000 feet distances. (Id. at 3831-42.) Ms.

Doe testified that she looked at properties farther than 1,000 feet from schools “so that I know that I’m okay.” (Id. at 3842.) While a prescribed distance may appear concrete on its face, without adequate guidance about how to measure the distance, such provisions are suspectible to vagueness concerns. For example, in Cunney v. Bd. of Trustees, 660 F.3d 612 (2d Cir.2011), the Second Circuit considered whether a zoning ordinance that prohibited the building of structures “over two stories tall or four and one-half feet above the easterly side of River Road” was void for vagueness. Id. at 621.

The court held that, while the ordinance “affords a reasonable person adequate notice of what it generally prohibits (e.g., three-story buildings will be in violation), it is remarkably unclear with respect to how the four and a half foot limitation is defined.” Id. The ordinance did not specify “from what adjacent elevation point on River Road the height of a building must be measured....

Consequently, this shortcoming not only fails to give specific notice of how a permit applicant should design his site plan so that the proposed building complies with that restriction, but it also fails to provide an objective standard that Village itself can apply....” Id. Similarly, the geographic exclusion zone provisions in SORA generally inform Plaintiffs that they may not reside, work, or loiter within 1,000 feet of a school zone, but, like the ordinance at issue in Cunney, SORA does not clarify how to measure the 1,000 feet.

It is unclear whether SORA’s exclusion zones should be measured from only the real property on which educational instruction, sports, or other recreational activities take place — excluding the parking lot, administrative buildings, and other real property used for other purposes-or whether the zone should be measured from the school property line even when some of the real property is not used for one of the stated purposes.

An attorney with the Prosecuting Attorneys’ Association of Michigan testified that prosecutors share “a pretty strong consensus that [the 1,000 feet distance] is measured property line to property line.” (Dkt. # 90, Pg. ID 3830.) Even assuming that this reflects SORA’s intended meaning, it nonetheless would be difficult for law enforcement and registrants to parse through school-owned real property to determine which is used for instruction, sports, or recreation, and which is not. However, the prosecutors’ alleged consensus does not reflect a literal reading of SORA.

A literal reading of SORA would exclude from the definition of “school property” parking lots, school administrative buildings, and other parts of a school’s real property where no instruction, sports, or other recreational activities occur. This literal, but arguably less practical, reading of SORA is bolstered by the rule of lenity because it reads the statute’s ambiguity in the registrants’ favor.

Assuming the 1,000 feet zones were measured from the property line, registrants would still be unable to reasonably determine the boundaries of the exclusion zones, resulting in the sort of “over-policing” described by Doe # 4’s partner. Michigan has not provided registrants with a map of exclusion zones or a list of all school properties. Defendants suggest that registrants can rely on Google maps (www.google.com/maps) and phone books to determine if their potential address is within 1,000 feet of an exclusion zone. (Dkt. # 97, Pg. ID 5767.) However, such tools do not eliminate many of the sources of vagueness.

First, neither Google maps nor phone books provide parcel data or clearly mark property lines. Second, while Google maps can provide helpful estimates as to distances between two properties, it would not provide a registrant with the necessary detail to determine whether a property that is close to 1,000 feet away from a school property line falls within an exclusion zone. Furthermore, Defendants acknowledge that neither the Michigan State Police nor current registrants have the necessary data to precisely determine the geographic exclusion zones.

Michigan is developing software called Offender Watch that reportedly will provide law enforcement with a standardized guideline for determining exclusion zones, but Offender Watch cannot currently conduct parcel to parcel measurements because the State Police do not have the necessary data. (Dkt. # 90, Pg. ID 3831 (“The [Michigan State Police’s Sex Offender Registration] Unit has tried but been unable to obtain parcel data....”).) Moreover, Offender Watch will not include all properties as defined by SORA, but only “active schools according to the Michigan Department of Education.” (Dkt. # 90, Pg.

ID 3830-31.) Nothing in Defendants’ Rule 52 motion or the Joint Statement of Facts suggests that law enforcement has the means to calculate the exclusion zones if a court should determine that the 1,000 feet distance should be measured from only the parts of a school’s real property used for instruction, sports, or other recreational activities.

SORA does not provide sufficiently definite guidelines for registrants and law enforcement to determine from where to measure the 1,000 feet distance used to determine the exclusion zones, and neither the registrants nor law enforcement have the necessary data to determine the zones even if there were a consensus about how they should be measured. Accordingly, due to SORA’s vagueness, registrants are forced to choose between limiting where they reside, work, and loiter to a greater extent than is required by law or risk violating SORA. ii.

Loitering Next, Plaintiffs contend that SORA’s prohibition against “loiter[ing]” within 1,000 feet of school property is unconstitutionally vague because the meaning of “loiter” is “totally unclear.” (Dkt. # 96, Pg. ID 5686.) SORA defines “loiter” to mean “to remain for a period of time and under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors.” Mich. Comp. Laws § 28.733(b).

Plaintiffs argue that it is unclear “whether they are permitted to attend parent-teacher conferences, go to a school movie night, or take their children to a school playground on the weekend.” (Dkt. # 96, Pg. ID 5687.) Defendants counter that the term is clear, and describe Plaintiffs’ argument as “making some kind of ‘as-applied’ challenge without the statute actually having been applied in the manner they argue.” (Dkt. #97, Pg. ID 5770.) But Plaintiffs’ challenges are more than hypothetical.

As discussed above, they need not risk violating SORA in order to challenge the law; Plaintiffs may challenge the définition of “loiter” to the extent that it has curtailed their conduct. Cf. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). SORA’s prohibition on loitering has curtailed Plaintiffs’ conduct. For example, in order to avoid risking a SORA violation, Doe # 3 does not “attend school activities like movie nights, math nights, bingo nights, open house/meet the teacher, talent shows, musicals, concerts or plays.” (Dkt. # 90, Pg.

ID 3861.) Likewise, Doe # 3’s wife suggests that Doe # 3 avoids “waiting for [her] children to come out of school and talk to his niece or nephew or observe his own children walking down from school” for fear that this conduct would violate the prohibition on loitering. (Dkt. # 90, Pg. ID 3853.) Thus, the court construes the vagueness challenge against the definition of “loiter” as an as applied challenge.

The definition of “loiter” contains two parts: (1) “remaining] for a period of time” and (2) “under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors.” Mich. Comp. Laws § 28.733(b). As this is an as applied challenge, the court will review the vagueness of this term as it relates to the activities from which Plaintiffs claim to have refrained. First, “ordinary people, exercising ordinary common sense can understand” the meaning of the phrase “remain for a period of time.” United States v. Salisbury, 983 F.2d 1369, 1378 (6th Cir.1993).

Webster’s Third New International Dictionary 1919, 2394 (3d ed.1981) defines “remain” to mean “to stay in the same place or with the same person or group,” and it defines “time” to mean “a period during which something (as an action, process, or condition) exists or continues.” Whether or not the phrase “period of time” embodies a degree of ambiguity by itself, the phrase “remain for a period of time” refers to staying in a school zone for any duration.

Driving one’s child to school and then immediately leaving the school zone does not involve “remaining]” in the school zone for any period of time; meanwhile, waiting at the school to pick up one’s child after school does involve “remaining]” in the school zone for a period of time. Ordinary people using common sense can deduce that, to “attend parent-teacher conferences, go to a school movie night, or take their children to a school play-ground on the weekend” (Dkt. # 96, Pg. ID 5686-87), a registrant would need to “remain for a period of time” in a school zone.

Likewise, Doe # 3’s abstention from waiting for his wife’s children after school and observing his children walking from school is not the result of unconstitutional vagueness in the phrase “remain for a period of time” because such activities fall within the meaning of the phrase. The second component of the definition of “loiter” raises a more difficult question. In City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999), the Supreme Court considered whether an ordinance prohibiting criminal street gang members from loitering was unconstitutionally void for vagueness.

A plurality of the court found that the definition of the term “loiter” was ambiguous. The ordinance at issue in Morales defined “loiter” as “to remain in any one place with no apparent purpose.” Id. at 56, 119 S.Ct. 1849. The plurality reasoned, “It is difficult to imagine how any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an ‘apparent purpose.’ ” Id. at 57, 119 S.Ct. 1849.

Similarly, just as it would be difficult to determine if a Chicagoan were standing in a place with no apparent purpose, in many circumstances, it would be difficult — perhaps not as difficult, but difficult nonetheless — to determine if a Michigander were standing in an exclusionary zone “apparently” for the specific, primary purpose of observing or contacting minors.

Conduct such as a registrant starting a conversation with a minor, videotaping a minor, or standing on a playground by himself watching minors, would likely fall within the definition of “loitering” with little room for a registrant to argue ambiguity. However, it remains ambiguous whether a registrant may attend a school movie night where he intends only to watch the screen, or a parent-teacher conference where students may be present.

The Morales plurality explained that “the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law [because] ‘[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.’ ” Id. (quoting Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939)).

SORA’s present definition of “loiter” is sufficiently vague as to prevent ordinary people using common sense from being able to determine whether Plaintiffs are, in fact, prohibited from engaging in the conduct from which Plaintiffs have refrained. iii. Reporting Requirements Plaintiffs also argue that SORA’s reporting requirements are unconstitutionally vague. In particular, Plaintiffs challenge the requirement that a registrant must “report in person and notify the registering authority ... immediately after ... the individual purchases or begins to regularly operate any vehicle,” Mich. Comp.

Laws § 28.725(1)(g), and the requirements that a registrant must report (1) “[a]ll telephone numbers registered to the individual or routinely used by the individual,” (2) “[a]ll electronic mail addresses and instant message addresses assigned to the individual or routinely used by the individual,” and (3) “[t]he license plate number, registration number, and description of any motor vehicle, aircraft, or vessel owned or regularly operated by the individual and the location at which the motor vehicle, aircraft, or vessel is habitually stored or kept.” Mich. Comp. Laws § 28.727(1)(h)-(j).

Plaintiffs assert that the terms “routinely used,” “regularly operated,” and “habitually stored and kept” are vague and undefined. (Dkt. # 96, Pg. ID 5687-88.) The requirements to report telephone numbers and e-mail and instant message addresses implicate First Amendment free speech rights and are, therefore, subject to facial vagueness challenges.

The requirement to report vehicles does not implicate First Amendment rights, but Plaintiffs adequately articulate how alleged vagueness in the term “regularly operate” has caused certain Plaintiffs to choose between potentially over-reporting information- or risk violating SORA. For example, Doe # 1’s employer owns a fleet of vehicles, and Doe # 1 testified that he is unsure whether he must report all of the vehicles (and inform his employer that all of the vehicles have been reported) because there is a chance he may drive any particular vehicle at some point. (Dkt. # 90, Pg.

ID 3933.) Likewise, Doe #2 drives his girlfriend’s car “once a quarter to go register and maybe two or three other times in that period.” (Id.) Doe #2 does not know if this constitutes “regular use” for the purposes of SORA. The court interprets the record as setting forth a vagueness challenge to the vehicle reporting requirement as applied to Does ## 1 and 2. For the same reasons, Plaintiffs may also challenge the telephone reporting provision as applied to Doe #4. Doe #4 is unsure whether he must register his mother’s telephone number, which he uses “on occasion.” (Dkt. # 90, Pg.

ID 3936.) See Babbitt, 442 U.S. at 298, 99 S.Ct. 2301 (internal quotation marks and citations omitted) (“When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.”). For both the as applied challenges and facial challenges, the vagueness in these provisions renders them constitutionally infirm for the reasons discussed below.

SORA does not define “regularly” or “routinely” as used in §§ 28.725(1)(

g) and 727(1)(h)-(j). “Unless they are otherwise defined, the words in a statute ‘will be interpreted as taking their ordinary, contemporary, common meaning.’ ” Deutsche Bank Nat’l Trust Co. v. Tucker, 621 F.3d 460, 463 (6th Cir.2010) (quoting United States v. Plavcak, 411 F.3d 655, 660 (6th Cir.2005)).

Webster’s Third New International Dictionary 1913 (3d ed.1981) defines “regularly” as “in a regular, orderly, lawful, or methodical way,” and it defines “regular,” in relevant part, as “steady or uniform in course, practice, or occurrence” and “returning, recurring, or received at stated, fixed, or uniform intervals.” In the court’s March 18, 2014 Opinion and Order Granting in Part and Denying in Part Defendants’ Amended Motion to Dismiss, the court denied Defendants’ motion to dismiss as to Count VII, finding that a similar dictionary definition of the term “regularly” does not “appear to provide an individual of ordinary intelligence a reasonable opportunity to know when he or she must report their use of a vehicle.

Nor does the .word ‘regularly,’ without some additional elaboration of its meaning, constitute a precise enough standard so as to avoid arbitrary enforcement by the State.” (Dkt. # 27, Pg.

ID 699.) Regarding this second point, the court explained in its previous order: This second point is illustrated by the complaint’s averment that John Doe IV was told by police officials that borrowing a car three times is the threshold for regular operation. (See Compl. ¶ 31.) There is no explanation in either the complaint or the attached exhibits, and Defendants offer none in their briefing, of how police could have arrived at the conclusion that the borrowing of a vehicle three times equals regular operation.

If the individual police officers arrived at this conclusion on their own, the reporting provision certainly raises red flags. On the other hand, and only hypothetically, if police based this three-event standard on some formal guidance published by the State and made available to the public, the vagueness objection to § 28.725(l)(

g) may be obviated. A more robust factual record is essential in this regard. However, the court cannot dismiss Count VII simply because Defendants contend that the challenged provisions have been in effect for several years and Plaintiffs have allegedly satisfied the provisions. (Dkt. # 27, Pg. ID 699-700.) In their Rule 52 motion, Defendants reassert the same argument made in their motion to dismiss that “none of the Plaintiffs expressed any doubt or uncertainty over what ‘regularly’ means.” (Dkt. # 97, Pg.

ID 5765.) Defendants also note that the phrase “regularly operate” was introduced into SORA at the request of the ACLU (Id. at 5766); however, this is inap-posite to whether the is phrase is unconstitutionally vague. The Joint Statement of Facts indicates that Plaintiffs and law enforcement are unsure as to the meaning of the term “regularly” (Dkt. # 90, Pg. ID 3930-37), and nothing in Defendants’ motion alleviates the court’s concern, expressed in its previous order, that the term “regularly” is vague under both parts of the vagueness test.

The term “routinely” implicates the same vagueness concerns as the term “regularly.” Webster’s Third New International Dictionary 1981 (3d ed.1981) defines “routine” as, inter alia, “a standard practice,” “the habitual method of performance of established procedures,” and “of a commonplace or repetitious character.” Both of these terms indicate to registrants and police officers that some degree of normal repetition is needed to be deemed to have regularly or routinely engaged in an activity.

But these terms are not sufficiently concrete (1) “to ensure fair notice to the citizenry” or (2) “to provide standards for enforcement by the police, judges, and juries.” Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1104 (6th Cir.1995). The court’s analysis of these terms is guided by Belle Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553 (6th Cir. 1999).

In Belle Maer Harbor, the Sixth Circuit struck down an ordinance regulating “bubbling devices,” which “extract relatively warmer water from the bottom of a waterway and bring that water to the surface, creating an area of open water which otherwise would be covered by ice.” Id. at 555 n. 2. The ordinance provided in relevant part: D. The amount of open water created by a bubbling system shall be controlled as follows: 1.

In canals one hundred ten (110') feet or less in width, a person choosing to bubble shall operate, maintain and periodically inspect the bubbling system apparatus so as to maintain an open water radius surrounding the bubbled object not to exceed five (5') feet, or as determined by the inspecting officer to be a reasonable radius. Id. at 555 n. 3.

The plaintiffs in Belle Maer Harbor challenged the ordinance as void for vagueness, and the Sixth Circuit focused on whether the term “reasonable” “bound[ed] the inspection officer’s enforcement decisions sufficiently to prevent ad hoc, discriminatory enforcement of the open water restriction.” Id. at 558. The court noted that “a failure to define a term within a statute or ordinance does not render the statute unconstitutionally vague, where the common meaning of the word provides both adequate notice of the conduct prohibited and of the standards for enforcement.” Id.

The court concluded that “a commonly accepted meaning [did not] exist[ ] for the term ‘reasonable’ which would provide an inspection officer with guidance in interpreting the Ordinance and in executing his or her enforcement duties with any uniformity.” Id. The court found that the Black’s Law Dictionary definition of reasonable “demonstrates that a standard grounded on reasonableness in this context is susceptible to a myriad of

interpretations conferring on the inspectors ‘a virtually unrestrained power to arrest and charge persons with a violation.’ ” Id. (quoting Kolender, 461 U.S. at 360, 103 S.Ct. 1855). Thus, the court held that the ordinance was unconstitutionally vague because it entrusted the enforcement of the ordinance “to the moment-to-moment judgment of the policeman on his beat” and because “the court [could not] conclude that a person of ordinary intelligence could determine from this standard the proscribed conduct.” Id. at 559.

Similar to the ordinance’s use of the word “reasonable” in Belle Maer Harbor, the commonly accepted meaning of the terms “regularly” and “routinely” do not provide sufficient guidance to law enforcement or registrants to survive a due process challenge both generally and as applied to Plaintiffs. The frequency and consistency with which Doe # 1 must drive his employers’ vehicles in order to trigger the registration requirement is unclear.

Likewise, it is ambiguous whether Doe # 2’s use of his girlfriend’s car a few times a quarter constitutes regular use, particularly in light of the rule of lenity, and a reasonable person and well-intentioned law enforcement officer would struggle to determine whether Doe # 4’s occasional use of his mother’s phone was “routine.” The ambiguity in the reporting requirements is further highlighted by officers’ and prosecutors’ responses to an informal telephonic survey questions conducted by volunteers for Plaintiffs, law enforcement officers’ answers to deposition questions, and law enforcement officers’ guidance to Plaintiffs.

Volunteers for Plaintiffs asked local law enforcement agencies and prosecutors’ offices how often a registrant could use a vehicle before triggering SORA’s reporting requirements. “[S]ome respondents did not know the answer, and others provided answers ranging from once or twice, to six or seven times, to ‘whatever is reasonable.’ ” (Dkt. # 90, Pg.

ID 3931.) When asked during a deposition whether a registrant who used a vehicle once during a three-month period had to report the vehicle, the law enforcement officer testified, “That would be probably a judgment call by the prosecutor or the law enforcement agency.” (Dkt. # 60-8, Pg.

ID 1853.) He answered in the affirmative when asked if “each law enforcement agency might- come to a different conclusion about what regular use means.” (Id.) Furthermore, law enforcement told Doe # 4 that “if he borrows a car more than three times he must immediately report in person,” but such use does not clearly trigger SORA’s reporting requirements. (Dkt. # 90, Pg. ID 3935.) Similarly, a local police department informed Ms.

Doe that she had to register a vehicle “if she was driving it or if it was parked in her driveway.” (Id. at 3936.) The disparate views of the meaning of the term “regularly use” exemplify the lack of a standardized guidelines for the enforcement of SORA’s reporting provisions. The Belle Maer Harbor court emphasized, “although we do not require impossible clarity in standards governing conduct, the court must apply a relative strict standard of scrutiny here where criminal sanctions apply.” Belle Maer Harbor, 170 F.3d at 559 (citing Kolender, 461 U.S. at 361, 103 S.Ct. 1855).

Here, SORA subjects registrants to criminal sanctions if they do not comply with the registration requirements, but SORA’s vagueness leaves law enforcement without adequate guidance to enforce the law and leaves registrants of ordinary intelligence unable to determine when the reporting requirements are triggered. iv.

Additional Terms and Phrases Challenged by Plaintiffs In Plaintiffs’ Response to Interrogatory 11, Plaintiffs challenge several additional terms and phrases as unconstitutionally vague, including, inter alia, the terms “employee,” “immediately,” “residence,” “student,” and many others. (See Dkt. # 64-1, Pg.

ID 2137-42.) In addition to the other terms discussed in this Section, Plaintiffs’ Rule 52 Motion specifically identifies as vague the terms “immediate,” “employer,” “temporarily reside,” and “designation used in Internet communications,” and it incorporates the other terms listed in the Response to Interrogatory 11 by reference. (Dkt. # 96, Pg. ID 5687-88.) Plaintiffs may challenge SORA on vagueness grounds only as applied to Plaintiffs unless the challenges implicate the First Amendment.

As stated above, the parties challenging the statutes “bear[ ] the burden of establishing that the statute is vague as applied to [their] particular case, not merely that the statute could be construed as vague in some hypothetical situation.” Kernell, 667 F.3d at 750. Plaintiffs have not carried this burden for the majority of terms and phrases listed in their Response; rather, their Motion asserts the sort of facial challenge that is reserved for laws implicating First Amendment rights.

Two terms or phrases identified by Plaintiffs as vague implicate Plaintiffs’ First Amendment rights and are therefore subject to facial challenges: the term “immediately” and the phrase “any other designations used in internet communications .or postings.” See infra

Section III.C. Therefore, the court may review Plaintiffs’ facial vagueness challenge of this term and phrase. Section. 28.725(l)(

f) requires registrants to “report in person and notify the registering authority ... immediately after ... [t]he individual establishes any electronic mail or instant message address, or any other designations used in internet communications or postings.” SORA defines “Immediately” to mean “within 3 business days.” Mich. Comp. Laws § 28.722(g). This definition provides registrants with adequate notice and law enforcement with adequate guidance as to the immediacy with which Plaintiffs must report new Internet designations.

Black’s Law Dictionary (10th ed.2014) defines “business day” as “[a] day that most institutions are open for business, usu[ally] a day on which banks and major stock exchanges are open, excluding Saturdays, Sundays, and certain major holidays.” Courts regularly use the term “business days” as defined in Black’s. E.g., Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) (distinguishing “business days” from “calendar days”).

Plaintiffs attempt to insert ambiguity into the term by suggesting that “it is unclear what ‘business days’ means in the context of reporting to law enforcement authorities that provide service seven days a week.” (Dkt. # 64-1, Pg. ID 2137.) But as evident in Black’s definition, the term refers to days that most institutions are open for business and most institutions are not open on weekends. SORA’s use of the term “immediately” is in no way vague or ambiguous.

Likewise, the phrase “designation used in Internet communications or postings,” when given the narrowing construction discussed below, is sufficiently clear to give fair notice to registrants as to what information must be reported and adequate guidance to law enforcement and the courts to provide standard enforcement of the law. See Columbia Natural Res., 58 F.3d at 1104. It is an intrinsic aspect of language that every word contains some degree of ambiguity. Cf. Johnson v.

Unit ed States, 559 U.S. 133, 139, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (Scalia, J.) (“[C]ontext determines meaning”). “You’re bad!” can be an insult or a particularly nice compliment; “this is Steven Spielberg’s last film” can mean that it is the most recent one he directed or it could mean that it is the final film that he will ever direct; and “Mark Twain” can refer to Samuel Langhorne Clemens, the author of The Adventures of Tom Sawyer (1876), a crater on Mercury, or the nautical term for two fathoms (twelve feet). In Green v. Bock Laundry Mach.

Co., 490 U.S. 504, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989), the Supreme Court explored the ambiguity in the word “defendant” as used in a former version of Federal Rule of Evidence 609(a)(1): The word [“defendant”] might be interpreted to encompass all witnesses, civil and criminal, parties or not. It might be read to connote any party offering a witness, in which event Rule 609(a)(1)’s balance would apply to civil, as well as criminal, cases. Finally, “defendant” may refer only to the defendant in a criminal case. Id. at 511, 109 S.Ct. 1981 (citations omitted). The Court rejected “an

interpretation [of the Rule] that would deny a civil plaintiff the same right to impeach an adversary’s testimony that it grants to a civil defendant,” id. at 510, 109 S.Ct. 1981, and held that Rule 609(a) “requires a judge to permit impeachment of a civil witness with evidence of prior felony convictions regardless of ensuant unfair prejudice to the witness or the party offering the testimony.” Id. at 527, 109 S.Ct. 1981. In a separate opinion, Justice Scalia — a strong advocate for giving statutes their plain meaning, see INS v.

Cardoza-Fonseca, 480 U.S. 421, 452-55, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (Scalia, J, concurring) — joined the majority in advocating interpreting the word “defendant” against its literal meaning to avoid “producing] an absurd, and perhaps unconstitutional, result.” Green, 490 U.S. at 527, 109 S.Ct. 1981 (Scalia, J., concurring); id. at 528-29, 109 S.Ct. 1981 (“The word ‘defendant’ in Rule 609(a)(1) cannot rationally (or perhaps even constitutionally) mean to provide the benefit of prejudice-weighing to civil defendants and not civil plaintiffs.

Since petitioner has not produced, and we have not ourselves discovered, even a snippet of support for this absurd result, we may confidently assume that the word was not used (as it normally would be) to refer to all defendants and only all defendants.”). As with the seemingly unambiguous words “bad,” “last,” and “defendant,” the phrase “any other designations used in internet communications or postings” includes some degree of ambiguity.

Webster’s Third New International Dictionary 612 (3d ed.1981) defines “designation,” inter alia, to mean “distinguishing name.” Law enforcement and registrants of ordinary intelligence would reasonably understand this phrase to include Internet aliases used to convey and exchange information.

See Webster’s Third New International Dictionary 460 (3d ed.1981) (defining “communicate” to mean “to make known,” “inform a person of,” and “convey the knowledge or information of’); Webster’s Third New International Dictionary 1771 (3d ed.1981) (defining “post” to mean “to affix ... to a post, wall or other usual place for public notice”); Post, Merriam-Webster’s Online Dictionary http://www. merriam-webster.com/dictionary/post (last visited Mar. 80, 2015) (defining “post” as “to publish (as a message) in an online forum (as an electronic bulletin board)”).

While the phrase uncontroversially includes social media aliases and other aliases used for the primary purpose of exchanging information with other Internet users, there are many Internet aliases that individuals use that involve some degree of Internet communication but do not clearly fall within SORA. Plaintiffs ask, “Must an individual report when setting up a new on-line bank account, Amazon account, Mlive account, gaming account, etc.?” (Dkt. # 64-1, Pg.

ID 2139.) , Through an alias created for a massively multiplayer online role-playing game (“MMORPG”), a registrant would likely engage in substantial communication with other individuals, including minors. Through an Ebay account, a registrant might post items for sale, communicate bids, and engage in private communications with sellers or buyers about the status of a transaction.

Individuals use online banking primarily to access their financial information, pay bills, deposit funds, and engage in other economic activity, but these accounts may also be used to communicate with bankers to facilitate such activities. In the broadest sense, virtually all online accounts are Internet designations used for some sort of communication. In order to alleviate ambiguity and in light of the rule of lenity, the court interprets SORA’s catch-all Internet designation phrase to apply to Internet designations that are primarily used in Internet communications or postings.

This construction is consistent with a plain reading of the statute. “[U]nder the established interpretive canons of noscitur a sociis and ejusdem generis, ‘[w]here general words follow specific words in statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.’ ” Wash. State Dept. of Soc. and Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003) (quoting Circuit City Stores, Inc. v.

Adams, 532 U.S. 105, 114-15, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001)); see Yates v.

United States, - U.S. -, 135 S.Ct. 1074, 1086-87, 191 L.Ed.2d 64 (2015) (plurality) (applying the canon of ejusdem gen-eris in holding that fish do not fall within the Sarbanes-Oxley Act of 2002’s, 18 U.S.C. § 1519, prohibition against knowingly destroying “tangible object[s]” because that term is limited to objects “used to record or preserve information”). “Any other designation used in internet communications or postings” is a general phrase which follows the more specific terms “electronic mail” and “instant message address” in § 28.725(l)(f).

E-mail and instant message addresses are used primarily for the purpose of communicating with other individuals online. Therefore, applying the canon of ejusdem generis, the court construes “other designations used in internet communications or postings” to refer only to designations used primarily for the purposes of Internet communications or postings.

This construction excludes designations used primarily to engage in e-commerce and online banking, or to read content like online newspaper accounts even though registrants may post comments at the end of online newspaper articles or “chat” with Amazon representatives. Meanwhile, a MMORPG alias is created for the primary purpose of interacting with other online gamers and engaging in a substantial amount of communications. Such aliases are “similar in nature” to e-mail and instant message addresses and fall within the Internet designation provision.

This narrowing construction also has the virtue of being consistent with how law enforcement is currently trained to enforce § 28.725(1)(f). The manager of Michigan’s sex offender registry testified that Michigan State Police’s Sex Offender Registration Unit trains law enforcement to record e-mail addresses and social media screen names, but not online banking information. (Dkt. # 60-6, Pg. ID 1800.) The manager also testified that online gaming screen names fall within SORA. (Id. at 1801.) In sum, using this narrowing construction, § 28.725(l)(

f) is sufficiently clear to provide fair notice to registrants and adequate guidance to law enforcement. 2. Strict Liability Plaintiffs further contend that SORA violates the Due Process Clause because it imposes strict liability for many reporting and exclusion zone violations. (Dkt. # 46, Pg. ID 900; Dkt. # 96, Pg. ID 5690-92.) Defendants do not address Plaintiffs’ strict liability arguments in their responses to Plaintiffs’ Rule 52 Motion.

Similar to the void for vagueness doctrine, strict liability in the context of criminal statutes raises concerns of fair notice. “[E]ven when a statute is specific about which acts are criminal, [the] due process analysis is not complete. When ... predicate acts which result in criminal violations are commonly and ordinarily not criminal, [courts] must ask the fair notice question once again.” United States v.

Apollo Energies, Inc., 611 F.3d 679, 687 (10th Cir.2010). “It is ... the general rule of law, and the dictate of natural justice, that to constitute guilt there must be not only a wrongful act, but a criminal intention.” Morissette v. United States, 342 U.S. 246, 274, 72 S.Ct. 240, 96 L.Ed. 288 (1952). In Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) the Supreme Court held that, to be convicted for violating a statute governing food stamp fraud, the government must provide that the defendant knew that the acquisition or possession of food stamps was in an unauthorized manner.

Id. at 433, 105 S.Ct. 2084. The Court explained that, for most criminal statutes imposing strict liability, “Congress has rendered criminal a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community’s health or safety;” meanwhile, the acquisition or possession of food stamps is not so obviously against the public interest that a reasonable person should be expected to know it is regulated. Id.

Plaintiffs insist that taking one’s children to a park near a school or failing to report a new e-mail account are similarly not inherently blameworthy activities, and, therefore, the court should read a knowledge requirement into SORA violations. The court agrees. SORA imposes myriad restrictions and reporting requirements that affect many aspects of registrants’ lives. Ambiguity in the Act, combined with the numerosity and length of the Act’s provisions, make it difficult for a well-intentioned registrant to understand all of his or her obligations.

Moreover, law enforcement officers’ disparate answers to survey and deposition questions about what SORA’s reporting requirements and prohibitions highlight SORA’s imperfect ability to provide fair notice to all persons who it covers. The frequency with which SORA is amended, as well as today’s highly mobile population, make a knowledge requirement even more important to ensure due process of law. The court’s decision is guided by Lambert v.

California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), in which the Supreme Court considered whether a Los Angeles ordinance making it “unlawful for ‘any convicted person’ to be or remain in Los Angeles for a period of more than five days without registering” and “requir[ing] any [convicted] person having a place of abode outside the city to register if he comes into the city on five occasions or more during a 30-day period.” Id. at 226, 78 S.Ct. 240.

The particular question before the Court was “whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.” Id. at 227, 78 S.Ct. 240. The Court added a knowledge requirement to the ordinance and held that “[w]here a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process.” Id. at 229-30, 78 S.Ct. 240.

Recognizing a knowledge requirement in SORA does not defang the legislation. Instead, it shifts responsibility to courts, law enforcement, and probation officers to make sure persons convicted of sex offenses are informed of their legal obligations. Such a sharing of responsibility is grounded in the text of SORA. SORA directs the department of corrections to “mail a notice to each individual registered under [SORA] who is not in a state correctional facility explaining the individual’s duties under this act as amended.” Mich. Comp. Laws § 28.725a(1).

The Act also directs the department of corrections to “provide written notice to [an] individual [upon the individual's release from a state correctional facility] explaining his or her duties under [SORA] and the procedure for registration, notification, and verification and payment of registration fee.” Mich. Comp. Laws § 28.725a. SORA was not enacted to serve as a trap for individuals who have committed sex offenses in the past (and who already have served their sentences).

Rather, the goal is public safety, and public safety would only be enhanced by the government ensuring that registrants are aware of their obligations. 3. Impossibility Plaintiffs also allege that “SORA ... contains provisions with which compliance is impossible,” rendering the Act in violation of the Due Process Clause. (Dkt. #46, Pg. ID 900.) Their Rule 52 motion identifies two such provisions.

First, Plaintiffs contend that the requirement for registrants to report in person makes compliance with SORA impossible because it may be infeasible for persons subject to SORA who are ill or injured or facing an emergency to timely report in person. (Dkt. # 96, Pg. ID 5692.) Were Plaintiffs’ reasoning applied to all legislation, no law that imposes an affirmative duty on an individual to perform a task would be consistent with due process of law because it would always be the case that some individuals could be too infirm to perform the affirmative duty.

If the court interprets Plaintiffs’ argument as applying exclusively to laws involving strict liability, adopting such an argument would still call into question the constitutionality of any strict liability statute or regulation imposing a duty to act. Plaintiffs’ impossibility argument raises a serious constitutional issue, but it is unaccompanied by any allegations that persons have been penalized for failing to report in person when required under SORA, due to illness, injury, or emergency.

Plaintiffs cite to an incident in 2001 when Doe # 3 failed to comply with the quarterly in-person reporting requirement because “Doe # 3 came back from a vacation near the end of the 15-day registration périod,” and “[t]he police station was closed from Friday, Saturday, and Sunday for a long weekend.” (Dkt. # 90, Pg. ID 3750-51.) As a consequence of Doe # B’s subsequent late reporting, he was found in violation of his probation, and Ms HYTA status was revoked. (Id. at 3751.) This is not an incident in which a registrant’s compliance with SORA was impossible.

Defendants note that “it is not clear why Doe # 3 chose to return from vacation at that time, or if he made any effort to check the police station’s availability before going on vacation, or if he attempted to go to any other police agency to report once he learned that his local police station was closed.” (Id.) Requiring an individual to slightly alter his vacation plans is a far cry from a due process violation. “It is the duty of federal courts to avoid the unnecessary decision of the constitutional questions.” Tower Realty v. City of E. Detroit, 196 F.2d 710, 724 (6th Cir.1952); see United States v.

Elkins, 300 F.3d 638, 647 (6th Cir.2002) (“Courts should avoid unnecessary constitutional questions.”); Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring) (“It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.” (citation omitted)).

This principle of constitutional avoidance counsels against resolving the question of whether SORA may penalize persons who fail to report in person due to illness, injury or emergency where, as here, there is no indication that the law has ever been enforced in such a manner. Furthermore, as will be discussed infra, the “in person” reporting requirement places an unnecessarily burdensome obstacle that limits protected First Amendment speech and, therefore, renders that provision unconstitutional. Accordingly, the legislature will have cause to revisit SORA’s requirement that registrants- report in person.

Under the circumstances, it is prudent for the court to abstain from ruling on this issue. Second, Plaintiffs argue that SORA violates the Due Process Clause because Doe # 4 “is automatically and unpreventably in violation” of SORA because “he is homeless [and] cannot update his driver’s license to match his registration address (which is ‘homeless’).” (Dkt. # 96, Pg. ID 5692.) Mich. Comp.

Laws § 28.725a(7) provides: An individual required to be registered under this act shall maintain either a valid operator’s or chauffeur’s license issued under the Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923, or an official state personal identification card issued under 1972 PA 222, MCL 28.291 to 28.300, with the individual’s current address. The license or card may be used as proof of domicile or residence under this section.

In addition, the officer or authorized employee may require the individual to produce another document bearing his or her name and address, including, but not limited to, voter registration or a utility or other bill. The department may specify other satisfactory proof of domicile or residence. A violation of § 28.725a(7) subjects an individual to “imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.” Mich. Comp. Laws § 28.729(2). Plaintiffs do not allege that Doe # 4 has been charged with violating SORA due to his failure to update his driver’s license or identification card.

However, the court acknowledges that Doe # 4 is left in the unenviable position of fearing that he may, at any moment, be arrested and sentenced to imprisonment for violating SORA. Here, there is a credible threat of prosecution, and Doe #4 need not wait until he faces criminal prosecution to seek relief. See Babbitt, 442 U.S. at 298, 99 S.Ct. 2301. Absent from the record is information about if and how homeless persons may obtain state identification cards.

The Supreme Court of Michigan has held that “homelessness is not a bar to compliance with SORA because homelessness does not preclude an offender from entering a police station and reporting to a law enforcement agency regarding the offender’s residence or domicile.” People v. Dowdy, 489 Mich. 373, 802 N.W.2d 239, 242 (2011). While the majority in Dowdy noted that SORA directs registrants to maintain a driver’s license or state identification card, it did not address whether it is feasible for homeless registrants to obtain such identification. Id. at 245.

To the contrary, the majority implicitly acknowledges that homeless registrants may have difficulty obtaining a driver’s license or state identification card by emphasizing that “those are not the exclusive means by which an offender may prove residence or domicile to law enforcement” and that, “if a sex offender is unable to provide any of the statutorily specified documents ..., the Michigan State Police is empowered to formulate alternative methods ... to verify the offender’s residence or domicile.” Id.

The Dowdy dissent insisted that § 28.725a(7)’s (then § 28.725a(8)) requirement for registrants to maintain a driver’s license or state personal identification card with their current address was unlawful because compliance is impossible for homeless registrants.

Justice Kelly, writing for herself and two other justices, explained: [T]o' obtain a driver’s license or state identification card, the Secretary of State requires an applicant to provide at least two documents “with [his or her] name and Michigan residence address.” Hence, by the Secretary of State’s own requirements, an individual cannot obtain a state identification card absent a valid residential address, which defendant did not have.

Nor does the majority, the Michigan State Police, or the prosecutor indicate how a homeless sex offender like defendant could obtain an identification card without a permanent address, much less change an address to reflect transient accommodations. Id. at 259 (Kelly, J., dissenting) (footnote omitted).

In order for the court to determine whether SORA’s requirement for registrants to maintain a driver’s license or state personal identification card is constitutional, as applied to Doe #4 and other homeless registrants, the court needs additional briefing on how and if homeless registrants can obtain such identification. The court will reserve ruling on the constitutionality of this provision until the parties have submitted additional briefing. B.

Count IV: The Fundamental Right to Participate in the Education and Upbringing of Children In Count IV, Plaintiffs claim that SORA’s geographic exclusion zones violate the Due Process Clause of the Fourth Amendment because they (1) substantially interfere with Plaintiffs’ ability to participate in the upbringing and education of their children, (2) do not provide for individualized consideration before restricting this right, and (3) are not narrowly tailored to serve a compelling state interest. (Dkt. # 46, Pg.

ID 897-98.) In particular, Plaintiffs first contend that SORA’s prohibition on loitering within 1,000 feet of a school safety zone does allow registrants to contact or observe their own children within the zones and thus prevent registrants from “observ[ing] or contacting their] children in half the city.” (Dkt. # 96, Pg.

ID 5694.) Second, Plaintiffs argue that, even if the loitering ban does not apply to one’s own children, the ban nonetheless unconstitutionally restricts parental rights because registrants cannot take their children to locations within the school safety zones where other children are likely to be. (Dkt. # 96, Pg. ID 5694-95.) Defendants argue that the loitering ban “does not implicate a fundamental right, [and therefore] it need only rationally advance some legitimate government purpose.” (Dkt. # 97, Pg.

ID 5760.) They contend that this standard is met because the loitering ban advances a state interest in protecting children. (Id.) Further, Defendants assert that, “[e]ven were the student safety zones established by SORA to implicate a fundamental right, this claim still fails because the [loitering ban] is narrowly tailored to advance the State’s compelling interest in protecting children.” (Id. at 5760-61.) “The substantive component of the Due Process Clause protects ‘fundamental rights’ that are so ‘implicit in the concept of ordered liberty’ that ‘neither liberty nor justice would exist if they were sacrificed.’ ” Doe v.

Mich. Dep’t of State Police, 490 F.3d 491 (6th Cir.2007) (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937)). The right to “direct the education and upbringing of one’s children” is one such fundamental right. Id. (quoting Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2302, 138 L.Ed.2d 772 (1997)). “The government cannot infringe on [a fundamental liberty interest] ‘unless the infringement is narrowly tailored to serve a compelling state interest.’ ” Johnson v. City of Cincinnati, 310 F.3d 484, 502 (6th Cir.2002) (quoting Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258).

But where the law does not infringe on a fundamental right, the court “analyze[s] its constitutionality under the rational basis test,” Walker v. Bain, 257 F.3d 660, 667-68 (6th Cir.2001), upholding the law “so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). “[T]he interest of parents in the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

The liberty interest includes a parent’s right to “the companionship, care, custody and management of his or her children.” Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)).

However, “the Supreme Court has yet to articulate the parameters of this right,” and the Sixth Circuit has recognized that the right “is neither absolute nor unqualified” and “is limited by an equally] compelling governmental interest in the protection of children, particularly where the children need to be protected from their own parents.” Kottmyer v. Maas, 436 F.3d 684, 690 (6th Cir.2006).

In the court’s previous opinion granting in part and denying in part Defendants’ motion to dismiss, the court found that the loitering ban “appears to prevent Plaintiffs from engaging in a plethora of activities closely related to the upbringing of their children” and that Defendants failed to “demonstrate that the loitering prohibition is actually narrowly tailored to the State’s interest and fails to explain why a less restrictive prohibition ... would not effectively achieve the State’s interest.” (Dkt. # 27, Pg.

ID 693-95.) The court informed the parties that “[flactual development is warranted” in order for the court to determine whether the loitering ban leaves Plaintiffs with sufficient involvement in their children’s lives to warrant rational basis review and, if not, to determine when the ban is narrowly tailored to achieve a compelling governmental interest. (Id. at 695.) Because of the geographical exclusion zones’ unconstitutional vagueness, the court is ill-equipped to. evaluate whether the loitering ban does in fact infringe on parents’ rights to participate in the upbringing and education of their children.

Defendant contends that the loitering ban does not infringe on this right because “the [geographic exclusion zone] provisions do[ ] not outright ban an offender’s presence on school property.” (Dkt. # 97, Pg. ID 5756-57.) They note that registrants may drop off and pick up their children, go to a public library, and attend a parent-teacher conference. However, as previously discussed, ambiguity in the exclusion zones and in the term “loiter” leave registrants of ordinary intelligence unable to determine what behavior is prohibited by SORA.

Due to SORA’s vagueness, it is unclear whether a registrant may visit a public library or attend a parent-teacher conference where minors are present without risking arrest from law enforcement. Furthermore, because it is unclear how the geographic exclusion zones are measured, the court is unable to determine the extent to which SORA infringes on a registrant’s ability to find a place to live with his children and the extent to which SORA prevents a registrant from accompanying his children to parks, playgrounds, movie theaters, restaurants, and other establishments and places in the state.

Defendants do not themselves provide any viable means for determining how much of Michigan falls within the exclusion zones, and SORA is too vague for the court, registrants, and law enforcement to make this determination. Defendants rely on Doe v. Miller, 405 F.3d 700 (8th Cir.2005) in which the Eighth Circuit found that a statute prohibiting sex offenders from living within 2,000 feet of a school did “not infringe upon a constitutional liberty interest relating to matters of marriage and family in a fashion that require[d] heightened scrutiny.” Id. at 711.

The Eighth Circuit reached this conclusion on the ground that “the statute does not directly regulate the family relationship or prevent any family member from residing with a sex offender in a residence that is consistent with the statute.” Id. But a statute need not directly regulate family relations in order to infringe on a person’s right to associate with his family. In Johnson v.

City of Cincinnati, 310 F.3d 484 (6th Cir.2002), the Sixth Circuit struck down as unconstitutional an ordinance that excluded individuals arrested, taken into custody, or convicted of an enumerated drug offense from “drug-exclusion zones” which were defined as “areas where the number or arrests for ... drug-abuse related crimes for the twelve (12) month period preceding the original designation is significantly higher than that for other similarly situated/sized areas of the city.” Id. at 487-88.

The Sixth Circuit held that the ordinance “plainly infringed on [a grandmother’s] right to participate in the' rearing of her grandchildren” because it “effectively banished” her from the neighborhood in which her grandchildren resided “and precluded ... her regular role in caring for her grandchildren.” Id. at 505. Furthermore, at least one court has held that a similar ordinance, which “prohibits registered s

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