John Does II & III v. Munoz, Sixth Circuit Court of Appeals # 06-2498, 11/13/07
Juvenile Review MenuPlaintiffs appealed the Eastern District of Michigan’s District Judge’s order dismissing their challenge to the constitutionality of Michigan’s Setting Aside Convictions Act (SACA) and the Sex Offender Registration Act (SORA). The District Court had concluded that no substantive due process or equal protection violations occurred by virtue of the requirement that those individuals convicted of an offense which was later set aside under SACA must still register and appear on Michigan’s Public Sex Offender Registry (PSOR). The Sixth Circuit Court of Appeals agreed.
SORA requires anyone ‘convicted’ of an offense listed under MCL 28.722(e) to register as a sex offender. Such a ‘conviction’ includes one subsequently set aside under SACA. A conviction for criminal sexual conduct fourth degree (CSC IV) is such a listed offense requiring registration. The registration information is compiled into a database, PSOR, from which the public has access to the names, addresses, etc. for all registered sex offenders in Michigan.
Plaintiffs argue that since their convictions have been set aside pursuant to SACA, their inclusion in PSOR violates substantive due process because their records, which for all intents and purposes are nonpublic, are included in the PSOR even though those convictions have been set aside pursuant to SACA. Secondarily, they contend that SACA and SORA violate their equal protection rights because they treat persons convicted of sexual offenses differently than persons convicted of other offenses.
The doctrine that “governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed” is known as substantive due process. Governmental actions that burden the exercise of fundamental rights or liberty interests are subject to strict scrutiny and will be upheld only when they are narrowly tailored to a compelling governmental interest. The list of such fundamental rights is short and adding to that list is only appropriate for those rights “where neither liberty nor justice would exist if they were sacrificed”.
Plaintiffs maintain that inclusion on the PSOR burdens their right to privacy and creates difficulties in retaining housing, finding and keeping employment, pursuing educational opportunities and pursuing family relationships. They contend they have been denied substantive due process because their inclusion on the PSOR infringes on their fundamental right to privacy. In particular, appellants rely on the interface between the SORA public registration and the SACA provision which makes their convictions (once set aside) publicly unavailable.
The right to privacy in the records at issue here is statutorily created. However, the statute creates an exception to the privacy of those records for purposes of PSOR. In addition, Plaintiffs do not dispute that they lack a fundamental right to privacy in information that is already public. Here, the plaintiffs’ convictions were public and remained public because of the exception in the SACA for their continued registration on the PSOR. In a similar case [Doe XIV v. Michigan Department of State Police, 490 F. 3rd 491 (6th Circ, 2007)], the court held that while “troubling”, the inclusion of Holmes Youthful Training Act (HYTA) offenders on the SORA was appropriate. In HYTA cases where the offender successfully completes his/her training program, s/he is never convicted. So such offenders have an even stronger case of infringement of a privacy right than do the plaintiffs in this case. Even so, the interface between SORA and HYTA labeled those HYTA offenders as sex offenders on the PSOR. In Doe XIV, the court found that the PSOR disclosure of HYTA offenders did not rise to the level of a substantive due process violation. Following that same reasoning, the plaintiffs here have not presented a violation of a fundamental right and/or a violation of their substantive due process. In fact, according to the appellate court, the current plaintiffs’ registration requirement is less “troubling” since they did have initial convictions that were public but later set aside.
The appellate court concluded that the registration of those persons who were allowed to set aside their convictions under SACA is rationally related to a legitimate governmental purpose. That purpose is to better assist law enforcement officers and the people of the state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders. Accordingly, the plaintiffs’ substantive due process claim fails.
Plaintiffs also raise equal protection violations in that SACA and SORA treated persons convicted of sexual offenses differently from persons convicted of other offenses. In making their claim, the plaintiffs have not shown themselves to be members of a suspect class or to have some fundamental right that is being protected. Accordingly, this claim is also reviewed to determine if the SACA and SORA legislation is rationally related to a legitimate governmental purpose.
The court has already held that the state has a rational basis for treating sex offenders differently from other offenders by requiring them to register. Further, contrary to the assertions of the Plaintiffs, in setting aside a conviction under SACA a court only makes the determination that such action is consistent with the public welfare. In making that determination the court knows that the offender will continue to be subject to SORA’s registration.
Therefore, he/she does not pose a threat to the public to the extent that he/she remains on the PSOR. Despite the determination under SACA, it remains rational for Michigan to seek to provide law enforcement and the public a means to monitor those persons who pose a potential danger. Thus, the equal protection challenge also fails.
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Last updated: 12-18-07
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