Michigan Supreme Court Says Homeless Sex Offenders Still Have to Register Residence
In a 4-3 decision filed Monday, July 11, 2011, the Michigan Supreme Court held that even homeless sex offenders had a duty to comply with the registration requirements of the Sex Offender Registry Act (MCL 28.721 et seq.) by registering their residence or domicile. The four justices paradoxically determined that lack of a home does not preclude a sex offender from reporting his or her residence or domicile.
The decision arose from the dismissal of Failure to Report charges against a defendant who had listed a homeless shelter as his residence from 2002 until 2006. In 2006 it was discovered he was a sex offender and he was asked to leave the shelter according to their policy. The defendant did not go to a Michigan State Police post and register a new residence within 10 days as is required by the statute. In fact, he had not registered since 2002. His attorney argued that he was unable to report because he in fact did not have a residence to report. The opinion contains no evidence of the habits of the defendant as far as where he typically travelled or remained. Nor did either the majority or the dissent seem concerned with the habits of this particular defendant.
The majority defined residence as that place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging. Emphasizing that this definition begins with place rather than home or building the majority held that a place could be a park as long as the sex offender habitually sleeps there and establishes regular lodging there. The dissent noted that in order to have a residence a person must have a (1) habitual (2) regular place of lodging where he or she (3) keeps his or her personal effects. Neither the majority nor the dissent defined lodging. The Merriam Webster online dictionary defines lodging as a place to live: Dwelling or sleeping accommodations, a temporary place to stay or a room in the house of another used as a residence. Thus even though both opinions rely on the term, the majority does so when the definition of the term would be in stark conflict with its application of the term to its generally defined place of residence. While a homeless individual may regularly sleep in a park, he or she could not have established regular lodging there where there are no accommodations to be made, and no room to be used as a residence.
The majority then defined domicile as that place where a person has voluntarily fixed his abode not for a mere special or temporary purpose, but with a present intention of making it his home, either permanently or for an indefinite or unlimited length of time. However, it relied on an excerpt from a 1897 case that states [e]very person must have a domicile somewhere and without applying the definition to the defendants circumstances, summarily stated he must have had a domicile to register. The dissent rightly chastised the majority for failing to apply its own definition of domicile to the present circumstances. It also noted that, according to Michigan case law, in order to establish a domicile, one must have a residence and an intent to remain there indefinitely. Thus rather than being the broader, all encompassing term that the majority sought to make it, domicile is in fact a subset of residence most appropriately defined as a permanent residence. The dissent properly notes that with no residence, the homeless simply cannot establish a domicile.
Even though the majority recognized that many homeless individuals are transient and nomadic it still held that they could register because the Michigan State Police would allow them to register their domicile at 123 Homeless in the city, state, county, and zip code where they spend their days. It reasoned that the intent of the legislature was to create a comprehensive list of sex offenders, and so this designation furthered that goal. The dissent criticized this method of assigning an arbitrary address to a homeless person as creating a false and misleading statement to the police and subjecting the homeless sex offender to further prosecution. Neither opinion addressed the two larger issues: (1) that homeless sex offenders are not necessarily tied to any one city, county, state, or zip code, and (2) that requiring them to register every time they change cities would become unreasonably burdensome. Particularly in metropolitan areas, what city or township a person is in may depend on which side of the road he or she is walking on. According to the majority’s registration requirement, every time a homeless person crossed a city line and set up a makeshift shelter there, he or she would have to report this new residence to the Michigan State Police within 10 days. Therefore, the majoritys decision would penalize those who are unable to find or afford a permanent residence or it requires them to limit themselves to one city or township in their attempts to find shelter. The more plausible and practical option would have been to instruct the Michigan State Police to include on their forms a box indicating Homeless to be checked by the sex offender. Then the offender could be listed in the county where he last reported without being tied to the particular city or township where he happened to be that day. With such a simple solution available, it is curious why neither the majority nor the dissent thought of it, and why the majority would instead place such an onerous burden on the homeless in our communities.
* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.