                         STATE OF MICHIGAN

                          COURT OF APPEALS



WILLIAM SIM SPENCER,                                              UNPUBLISHED
                                                                  October 9, 2018
              Plaintiff-Appellant,

v                                                                 No. 341769
                                                                  Court of Claims
DIRECTOR OF THE DEPARTMENT OF STATE                               LC No. 16-000274-MZ
POLICE,

              Defendant-Appellee.


TIMOTHY WAYNE MCCLELLAND,

              Plaintiff-Appellant,

v                                                                 No. 341777
                                                                  Court of Claims
DIRECTOR OF THE DEPARTMENT OF STATE                               LC No. 16-000311-MZ
POLICE,

              Defendant-Appellee.


Before: CAVANAGH, P.J., and MARKEY and LETICA, JJ.

PER CURIAM.

        In these consolidated appeals involving Michigan’s Sex Offender Registration Act
(SORA), MCL 28.721 et seq., plaintiffs William Spencer and Timothy McClelland appeal by
right the Court of Claims’ Opinion and Order granting in part and denying in part the motion for
summary disposition of defendant, the Director of the Department of State Police, and enjoining
retroactive enforcement of requirements in the 2006 and 2011 SORA amendments as to
plaintiffs. We affirm.

                                     I. BACKGROUND

        Plaintiffs are convicted sex offenders whose offenses occurred in 1994 and 2011,
respectively. At the time of plaintiffs’ offenses, the SORA required the creation of a convicted
sex offender registry, which included, inter alia, the names, addresses, and pictures of certain

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convicted sexual offenders. See 1994 PA 295. Based on their convictions, plaintiffs are required
to register as offenders under the Act.

        In 2006, the Legislature amended the SORA to add the additional requirement that a
registered sex offender is prohibited from living, working, or loitering within 1,000 feet of
school property. See MCL 28.733 through MCL 28.736, 2005 PA 121. The Legislature
amended the SORA again in 2011. 2011 PA 17. The 2011 amendment classified registrants in
tiers based on their crimes and established mandatory in-person reporting requirements
applicable, for example, when a registrant changes residences or employment, enrolls as a
student, changes their name, wishes to travel for more than seven days, or buys or begins to use a
new vehicle. MCL 28.722(r) through (v) and MCL 28.725, 2011 PA 17.

        As with previous amendments of the SORA, the 2006 and 2011 amendments resulted in
multiple legal challenges. Pertinent here is Does #1-5 v Snyder, 834 F3d 696 (CA 6, 2016),
where five registered sex offenders claimed, in part, that retroactive application violated the Ex
Post Facto Clause of the United States Constitution. Id. at 698. After analysis of the SORA’s
punitive effects, likening it to the ancient punishment of banishment, traditional shaming, the
punishment of parole/probation, and noting the lack of any evidence supporting a rational
connection to its non-punitive purpose (reducing recidivism), the Sixth Circuit determined that
the SORA, as amended, imposes punishment. Id. at 701-705. The Sixth Circuit therefore held
that retroactive application of the 2006 and 2011 SORA amendments is unconstitutional under
the Ex Post Facto Clause. Id. at 706.

        After Does #1-5, plaintiffs, in propriis personis, each filed a complaint in separate cases
seeking injunctive and declaratory relief and alleging that the SORA, as amended, violates the
Ex Post Facto Clause when applied to them and runs afoul of their substantive due process and
equal protection rights. The Court of Claims consolidated plaintiffs’ claims. Thereafter,
defendant moved for summary disposition under MCR 2.116(C)(7) and (C)(8) on the grounds
that plaintiffs’ complaints were not ripe, or otherwise lacked a cognizable case or controversy
and were moot, given that plaintiffs had not been threatened with enforcement of an
unconstitutional portion of the SORA, as amended.

         The Court of Claims granted the motion in part as to plaintiff Spencer under MCL
2.116(C)(8) (claim is moot) and denied it in part as to plaintiff McClelland under MCR
2.116(I)(2) (judgment proper for opposing party). As to plaintiff Spencer, the court found that he
was entitled to no further relief because the Court of Appeals in Spencer v Benzie Co
Prosecuting Attorney, unpublished opinion per curiam of the Court of Appeals, issued November
14, 2017 (Docket No. 337827), had already issued a decision granting him the relief requested,
i.e., remanding for entry of an order enjoining prosecution for charges based on a violation of the
2006 and 2011 SORA amendments. With regard to plaintiff McClelland, the court found that
plaintiff McClelland was entitled to entry of an order enjoining enforcement of the 2006 and
2011 SORA amendment requirements consistent with Does #1-5.1 The Court of Claims entered


1
 The court did not address plaintiffs’ remaining constitutional claims sounding in substantive
due process or equal protection.


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an order consistent with its opinion. Despite essentially prevailing in their requests for relief,
plaintiffs filed the instant appeals.

                                  II. STANDARD OF REVIEW

        We review de novo a lower court’s decision on a motion for summary disposition.
Washburn v Michailoff, 240 Mich App 669, 672; 613 NW2d 405 (2000). Summary disposition
under MCR 2.116(I)(2) is proper “if the court determines that the opposing party, rather than the
moving party, is entitled to judgment as a matter of law.” Id. Summary disposition is proper on
the basis of mootness if an event occurs that makes it impossible to grant further relief. B P 7 v
Bureau of State Lottery, 231 Mich App 356, 359; 586 NW2d 117 (1998).

                                          III. ANALYSIS

        On appeal, plaintiffs take no issue with the ultimate relief they were granted: an
injunction enjoining retroactive application of the 2006 and 2011 SORA amendments consistent
with Does #1-5. Instead, plaintiffs seek to obtain further relief, effectively asking this Court to
declare the SORA facially unconstitutional—allegedly because it is vague and creates an
irrebuttable presumption as to an element of proof—and to reverse their underlying convictions.
Although plaintiffs pleaded these claims or raised them in response to defendant’s summary
disposition motion, the Court of Claims did not consider them because it resolved this case on
the basis that retroactive application of the SORA amendments to plaintiffs violates the Ex Post
Facto Clause. In our view, the Court of Claims did not err in failing to address these additional
arguments. Because the ex post facto analysis resolved the case, any decision on the remaining
constitutional questions would be unwarranted dicta and amount to nothing more than a
prohibited advisory opinion. See Thomas M Cooley Law Sch v Doe 1, 300 Mich App 245, 270-
271; 833 NW2d 331 (2013).

        Even assuming without deciding that the court committed error for failing to consider
these claims, plaintiffs cannot establish that the alleged error violated their constitutional rights.
This is because the substantive provisions of the 2006 and 2011 amendments do not apply to
plaintiffs; therefore, those amendments’ alleged unconstitutional effects do not touch on
plaintiffs’ substantial rights. In other words, even if the court had considered the claims, it
would not have changed the outcome of the case because the amendments do not apply to
plaintiffs’ status on the sex offender registry. In sum, the Court of Claims did not err by
declining to address these issues and, further, our consideration of these issues on appeal would
run afoul of the same principles.

       Finally, and solely for plaintiffs’ benefits, we clarify the effect of the 2006 and 2011
amendments on registrants whose offenses occurred before those amendments’ effective dates.
Does #1-5 determined that the SORA, as amended, does not apply retroactively, given that such
application would result in a constitutional ex post facto violation. Does #1-5, 834 F3d at 706.
Generally, if a statute applies prospectively only, the prior version of that statute applies to acts
that occurred before the new statute’s effective date. See generally People v Doxey, 263 Mich
App 115, 123; 687 NW2d 360 (2004) (implicitly recognizing that the prior version of a
sentencing statute applied to crimes that occurred before amendment to that sentencing statute).


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Consequently, the prior version of the SORA in effect at the time of plaintiffs’ convictions
applies to plaintiffs.

       Affirmed.



                                                        /s/ Mark J. Cavanagh
                                                        /s/ Jane E. Markey
                                                        /s/ Anica Letica




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