Order                                                                          Michigan Supreme Court
                                                                                     Lansing, Michigan

  July 8, 2011                                                                        Robert P. Young, Jr.,
                                                                                                Chief Justice

  142593                                                                              Michael F. Cavanagh
                                                                                            Marilyn Kelly
                                                                                      Stephen J. Markman
                                                                                      Diane M. Hathaway
                                                                                          Mary Beth Kelly
  PEOPLE OF THE STATE OF MICHIGAN,                                                        Brian K. Zahra,
            Plaintiff-Appellee,                                                                      Justices

  v                                                        SC: 142593
                                                           COA: 301198
                                                           Cass CC: 09-010155-FH
  RAYMOND JOSEPH-LEE HULBEN,
          Defendant-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the January 24, 2011
  order of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the question presented should be reviewed by this Court.

          MARILYN KELLY, J. (dissenting).

         This case presents the issue of whether probation restrictions imposed on
  defendant, one of which is explicitly based on student safety zone provisions in the Sex
  Offenders Registration Act (SORA), 1 withstand constitutional scrutiny. Because I
  believe that the Supreme Court has the responsibility to address this jurisprudentially
  significant issue, I would grant defendant’s application for leave to appeal.

         Defendant pled guilty to three counts of possession of child sexually abusive
  material. He was sentenced to five years’ probation, the first year to be served in jail.
  After sentencing, defendant challenged several conditions of his probation, including one
  drawn from the student safety zone provisions in SORA. Specifically, defendant
  challenged the restriction that he “must not reside, work, or be within 1,000 feet of the
  property of any student safety zone (developmental kindergarten through 12th grade
  school) unless [he] meet[s] a statutory exemption and ha[s] prior written approval of the
  field agent.” 2 Defendant further challenged the trial court’s extrastatutory restriction that
  he “must not go to or be within 500 feet of parks, municipal swimming pools,
  playgrounds, child care centers, pre-schools, arcades, or other places primarily used by
  individuals 17 years or under without prior written approval of the field agent.” 3

  1
      MCL 28.721 et seq.
  2
      See MCL 28.733(f); MCL 28.734(1)(a) and (b); MCL 28.735(1).
  3
    MCL 28.734(1)(a) and (b) prohibit persons required to be registered under SORA from
  working or loitering within a student safety zone, respectively. MCL 28.733(b) defines
  “loiter” as “to remain for a period of time and under circumstances that a reasonable
                                                                                            2


       The trial court declined to remove these restrictions from the probation order. The
Court of Appeals denied defendant’s application for leave to appeal. It concluded that
defendant’s challenge was not ripe for review because defendant had failed to show an
actual or imminent injury sufficient to create a live case or controversy. It also noted that
defendant’s constitutional challenge to the restrictions failed to allege any facts to suggest
even an incidental infringement of his constitutional rights.

        Defendant subsequently filed an application for leave to appeal in this Court. He
claims that the student safety zone restrictions infringe on his constitutional rights to
privacy, establish a home, maintain family relationships, travel, and pursue a chosen
profession without unreasonable governmental interference. He also contends that the
restrictions violate his federal and state due process rights.

       Contrary to the terse order issued by the Court of Appeals, it can hardly be said
that this case is not ripe for appellate review. The ripeness doctrine prevents the
adjudication of hypothetical or contingent claims before an actual injury has been
sustained. As the United States Supreme Court stated in Thomas v Union Carbide
Agricultural Products Co, a claim is not ripe if it rests on “‘contingent future events that
may not occur as anticipated, or indeed may not occur at all.’” 4

       Here, the probation order restrictions are so sweeping that they potentially prevent
defendant from such activities as obtaining employment, seeking medical assistance, or
traveling to or from his place of worship. His claims are based not on contingent future
events, but on the fact that he is barred from certain areas right now. Moreover, the scope




person would determine is for the primary purpose of observing or contacting minors.”
By contrast, the provision in defendant’s probation order prohibits him from even being
within a student safety zone.
4
 Thomas v Union Carbide Agricultural Prod Co, 473 US 568, 580-581 (1985) (citation
omitted).
                                                                                                               3

of these restrictions raises questions such as, How can defendant be aware of every
church with a child-care center and of every location primarily used by people under 17
years of age?

       As noted, the prohibition against being within 500 feet of parks, municipal pools,
playgrounds, child-care centers, or other places primarily used by people under 17 years
of age has no statutory basis. Defendant challenges this judicially crafted prohibition as
unconstitutional. Because these restrictions in defendant’s probation order may not
withstand constitutional scrutiny, defendant is entitled to have them addressed by this
Court.

      In sum, this case is ripe for review. And the Court of Appeals’ conclusion that
defendant failed to allege facts sufficient to suggest even an incidental infringement of
his constitutional rights is highly questionable. 5 Defendant raises issues of first
impression in Michigan that deserve the Court’s consideration.

      For these reasons, I would grant the application for leave to appeal.

      CAVANAGH, J., joins the statement of MARILYN KELLY, J.

      HATHAWAY, J., would grant leave to appeal.




5
  Other state supreme courts have struck down as unconstitutional restrictions that
operated as regulatory takings of property without just compensation. See, e.g., Mann v
Georgia Dep’t of Corrections, 282 Ga 754 (2007) (holding that a statute prohibiting the
defendant from residing or working within 1,000 feet of a facility where minors would
congregate amounted to an unconstitutional taking without adequate compensation);
State v Pollard, 908 NE2d 1145 (Ind, 2008) (holding that a statutory residency restriction
that prohibited the defendant from residing within 1,000 feet of a school, youth program
center, or public park was unconstitutional).



                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         July 8, 2011                        _________________________________________
       d0705                                                                 Clerk
