MSC: Betts Applies Retroactively To Convicted Sex Offenders On Collateral Review

A unanimous Michigan Supreme Court has ruled in People v Shaver that its 2021 decision in People v Betts applies retroactively, thereby giving certain convicted sex offenders the opportunity to have their adjudications reviewed.

The Michigan Supreme Court in Betts (Docket No. 148981) held that through various amendments to the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., that became effective in 2011, the statute no longer served as a civil registration system, but instead had become punitive. For example, amendments imposed in-person reporting, Internet identifier disclosure, a three-tiered classification system and shorter reporting deadlines, among other things. The justices in Betts said that applying SORA to individuals whose offenses occurred before the amendments violated the constitutional prohibition against ex post facto punishment – that is, the stricter requirements could not be applied retroactively to offenders whose crimes were committed before the statutory changes were made.

In the present case, People v Shaver (Docket No. 167736), the defendant was a juvenile at the time of his sex offense conviction in 2004. At that time, SORA required registrants to report address changes within 10 days. In 2015, the defendant updated his address with law enforcement before planning to move into a new home. However, the move fell through and, as a result, the defendant’s registered address in SORA was incorrect for 19 days. The defendant was subsequently convicted in Tuscola County Circuit Court for failing to register under the stricter 2011 SORA requirements.

After the Michigan Supreme Court decided Betts, the defendant filed a motion for relief from judgment, arguing that his 2015 conviction for failing to register should be reversed pursuant to Betts. The trial court, without affording the prosecution an opportunity to respond, held that Betts applied retroactively and reversed the defendant’s conviction.

The prosecutor appealed, contending the trial court erred by not letting it respond to the defendant’s motion and by finding that Betts applied retroactively. The Michigan Court of Appeals agreed and reversed the trial court’s decision (Docket No. 361488). Court of Appeals Judge Allie Greenleaf Maldonado wrote the published and binding opinion, joined by Judge Mark J. Cavanagh and Judge Kathleen Jansen.

The defendant appealed. The Michigan Supreme Court accepted the defendant’s position and reversed the Court of Appeals.

“In sum, we hold that Betts applies retroactively … because it announced a new substantive rule of law,” Chief Justice Megan K. Cavanagh wrote for the high court. “While we acknowledge that the Michigan Constitution may at times provide broader effect than federal jurisprudence affords, our Constitution may not provide fewer protections than those guaranteed under the federal Constitution. Accordingly, we hold that Betts also applies retroactively under state law.”

Betts & SORA

In its analysis, the Michigan Supreme Court examined the evolution of SORA, noting that since 1994 “the Legislature has amended SORA several times, increasing the availability of the registry to the public and expanding the breadth of information registrants are required to provide to law enforcement.” For example, the Legislature “increased restrictions imposed by SORA through amendments that became effective in 2006 …. The 2006 SORA created ‘student safety zone[s],’ which prohibited most registrants from living, working, or loitering within 1,000 feet of a school.”

Then in 2011, “a series of significant amendments to SORA became effective …,” the justices observed. “For the first time, registrants were classified into three tiers of offenders. … Relevant to this case, the 2011 SORA also amended reporting provisions of the act. … [T]he 2011 SORA dramatically shortened the timeframe in which an individual could register a change in their address from 10 days to just 3 days. … After 2011, registrants were also required to report address changes to law enforcement in person.”

According to the high court, “the 2006 and 2011 SORA amendments have effectively been applied retroactively. That is, they imposed requirements on all registrants – even those whose convictions were made final before the laws were enacted.”

The Michigan Supreme Court then turned to its decision in Betts. “In Betts, we first determined that the Legislature intended the 2011 SORA to function as a civil regulation rather than a criminal punishment …. We … determined that the 2011 SORA was so punitive in effect that the Legislature’s intention to deem it a civil regulation had been negated. … We therefore concluded that ‘… the 2011 SORA’s aggregate punitive effects negate[d] the state’s intention to deem it a civil regulation.’”

Because Betts determined “both severance and revival to be inappropriate remedies, we held that the 2011 SORA in its entirety could not be applied to registrants whose registrable acts occurred before the 2011 SORA was enacted,” the justices said. “While our opinion in Betts made clear that the 2011 SORA was unconstitutional in its entirety, it did not address whether individuals convicted under the 2011 SORA could obtain relief on collateral review. We turn to that question now.”

Retroactive Application Of Betts

Next, the Michigan Supreme Court explained that because Betts arose under federal and state constitutional law, both federal and state tests for retroactive application would “typically” be examined. “However, we need not reach an evaluation of retroactivity under the state test because analysis under the federal standard leads us to conclude that Betts applies retroactively under both federal and state constitutional law.”

First, the justices concluded that Betts announced a new rule of law. “Prior to Betts, Michigan courts rejected ex post facto challenges to SORA, reasoning that SORA registration requirements were a civil regulatory scheme rather than a punishment. … Therefore, given the state of the law at the time defendant’s conviction became final, a reasonable Michigan jurist would not have felt compelled by existing precedent to grant defendant the relief sought here.”

Second, having concluded that Betts announced a new rule of law, the high court evaluated whether that rule was “procedural or substantive” in nature. “Procedural rules are not retroactively applicable, while substantive rules are retroactively applicable.” Here, although the Court of Appeals properly found that Betts announced a new rule of law, it “confusingly concluded that the new rule was neither substantive nor procedural,” the justices observed.

“We conclude that the rule announced in Betts was substantive in nature,” the justices wrote. “In holding that the 2011 SORA imposed an unconstitutional ex post facto punishment, Betts did not concern the manner or procedure through which individuals could be convicted under the 2011 SORA. Instead, the rule expressed in Betts prohibited ‘a certain category of punishment for a class of defendants because of their status or offense.’ … Specifically, the Betts rule proscribed a class of punishment – conviction of a violation of the 2011 SORA’s requirements – for a specific class of defendants – individuals convicted of sex offenses before 2011. The Betts rule fits within Teague’s [Teague v Lane, 489 US 288 (1989)] core exemption – finality concerns give way where a court ruling takes out of the hands of the government the authority to punish a group of people in a certain way.”

The high court explained that, in its analysis, the Court of Appeals “failed to acknowledge that Betts addressed the 2011 SORA as a whole. In Betts, we explicitly stated that ‘severability and revival’ were inappropriate remedies in addressing the punitive features of the 2011 SORA. … We stressed that the 2011 SORA could not be retroactively applied – in whole or in part – to individuals whose criminal acts occurred before the enactment of the 2011 SORA amendments.”

The Court of Appeals “reasoned that our holding in Betts did not constitute a new substantive rule because defendant would have been required to register his address under any iteration of SORA,” the Michigan Supreme Court said. “The panel’s conclusion was erroneous because our holding in Betts relied upon a review of the 2011 SORA in its entirety.”

Accordingly, “Betts applies retroactively to defendants on collateral review under both federal and state retroactivity standards,” the justices concluded. Therefore, “we reverse the Court of Appeals’ decision reversing the trial court’s order granting defendant’s motion for relief from judgment and remand this case for further proceedings ….”