Michigan sex offender registration law held unconstitutional

On January 24, the Michigan Supreme Court held the state’s sex offender registration scheme unconstitutional on due process grounds as applied to one Boban Temelkoski.  Temelkoski had pleaded guilty under a youthful offender statute with the expectation that no collateral consequences would attach to the disposition if he successfully completed its conditions.  However, several years later a registration requirement was enacted and applied retroactively to his case.  Because the court decided Temelkoski’s case on due process grounds, it did not need to address arguments that application of the registration statute to him constituted constitutionally impermissible punishment.  However, the court hinted in dicta how it might decide that issue, stating that “It is undisputed that registration under SORA constitutes a civil disability.”  While a win is a win, we must wait another day for a decision on the constitutionality of Michigan’s registration scheme under the Ex Post Facto Clause and the State’s version of the Eighth Amendment.

An analysis of the Temelkoski decision by Asli Bashir, a 2017 graduate of Yale Law School, follows.

On January 24, in People v. Boban Temelkoski, the Michigan Supreme Court ruled that retroactive application of a sex offender registration statute to a man who pleaded guilty to a sex offense under a state diversionary statute violated his right to due process under the state and federal constitutions. The ruling reinforced the principle that the government must follow through on promises it makes to defendants who waive the fundamental constitutional right to a jury trial and plead guilty. Because the petitioner prevailed on due process grounds, the court did not need to address his claim that application of the registration statute in this case constituted constitutionally impermissible punishment.
On March 4, 1994, Boban Temelkoski pleaded guilty as charged to one count of second-degree criminal sexual conduct in violation of MCL 750.520c(1)(a). Temelkoski was sentenced to three years of probation supervision, subject to the Holmes Youthful Trainee Act (HYTA), MCL 762.11, et. seq. Under HYTA, certain young offenders between the ages of 17 and 20 may be assigned “youthful trainee” status and ultimately have their cases dismissed and their records sealed. MCL 762.11(1), as amended by 1993 PA 293. At the time Temelkoski pleaded guilty, HYTA provided that:
[a]n assignment of an individual to the status of youthful trainee as provided in this chapter is not a conviction for a crime, and the individual assigned to the status of youthful trainee shall not suffer a civil disability or loss of right or privilege following his or her release from that status because of his or her assignment as a youthful trainee.
MCL 762.14(2).
In October 1995, the state Sex Offender Registration Act (SORA) took effect. SORA retroactively defined Temelkoski’s youthful trainee adjudication as a “conviction” that required him to register as a sex offender for 25 years. See MCL 28.721 et seq., 1994 PA 295 § 3. On April 16, 1997, Temelkoski successfully completed his traineeship. His case was dismissed with prejudice and the record was sealed pursuant to HYTA. But Temelkoski remained a registered sex offender under SORA.
Over the following years, amendments to SORA imposed increasingly onerous restrictions on Temelkoski, including lifetime registration. See, e.g., 2011 PA 17, §§ 2(w)(v); 5(12). Yet, when the Michigan legislature amended its laws in 2004 to exclude successfully discharged youthful trainees from sex offender registration requirements, this amendment was not made retroactive and therefore did not benefit Temelkoski. See 2004 PA 240, § 2(a)(ii).
In 2012, Temelkoski filed a motion in Wayne County Circuit Court for removal from the sex offender registry, which the court granted after stating that SORA constituted punishment and was an ex post facto law as applied to Temelkoski. See People v Temelkoski, 859 N.W.2d 743, 749 (Mich. Ct. App. 2014). After the Michigan Court of Appeal reversed the trial court judgment, Id. at 748, the state supreme court granted leave to appeal.
The court’s ruling relied exclusively on Temelkoski’s expectations under his plea agreement, applying the principle that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971). Evaluating the circumstances of Temelkoski’s plea agreement under the Santobello principle, the justices concluded that he reasonably relied on possible adjudication under HYTA and the “express promise that upon successful completion of his youthful training, he would not have a conviction on his record or suffer any related civil disabilities.” The court reached this conclusion after observing that Temelkoski pleaded guilty to the principal charge against him and did so only after he had been screened for youthful trainee eligibility:
Because [Temelkoski] pleaded guilty on the basis of the inducement provided in in HYTA as effective in 1994 (i.e., before SORA’s effective date), was assigned to HYTA training by the trial judge, and successfully completed his HYTA training, retroactive application of SORA deprived [Temelkoski] of the benefits under HYTA to which he was entitled and therefore violated his constitutional right to due process.
Justice Kurtis T. Wilder dissented from the order, stating that he would have remanded the case to the trial court for further factual development. Justice Brian K. Zahra joined Justice Wilder’s dissent.
Although the court’s order did not address whether SORA constitutes constitutionally impermissible punishment, briefs filed by the parties and amici addressing all six questions and can be found here.