Defining the safety zone

The Michigan Supreme Court has denied leave in a case that asks the question: Where exactly is a safety zone supposed to be?

In People v. Raymond Joseph-Lee Hulben, Hulben pleaded guilty to three counts of possession of child sexually abusive material. He was sentenced to five years of probation, the first which was to be served in jail.

After he was released from jail, he challenged some of the conditions of probation. Specifically, he challenged the student safety zone provisions in the Sexual Offender Registration Act, or SORA.

The provision stated that he must not reside, work or be within 1,000 feet of the property of any student safety zone unless he could meet a statutory exemption and get written approval from his probation officer. The provision also said that he couldn’t go within 500 feet of parks, public pools, playgrounds, daycare centers and preschools, arcades and “other places primarily used by individuals 17 years or under without prior written approval of the field agent.”

In what Justice Marilyn Kelly called in her dissent to the order a “terse order issued by the Court of Appeals,” the Court of Appeals denied Hulben’s application for leave to appeal because it is not ripe for review. The Michigan Supreme Court in turn also denied leave, stating only that the Court is not persuaded that the question presented should be reviewed by the Court.

Nonsense, wrote Kelly, who said that the Supreme Court “has the responsibility to address this jurisprudentially significant issue …”

The conditions of Hulben’s probation, she said, 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 of these restrictions raises questions such as, how can defendant be aware of every church with a child-care center and every location primarily used by people under 17 years of age?”

The provision, Kelly wrote, is “judicially crafted,” without statutory basis, and unconstitutional.

“In sum,” she wrote, “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. Defendant raises issues of first impression in Michigan that deserve the Court’s attention.”

Justice Michael F. Cavanagh joined her dissenting statement, and Justice Diane M. Hathaway said she would grant leave to appeal.


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