                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 07a0269p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                    X
                              Plaintiff-Appellant, -
 JOHN DOE, XIV,
                                                     -
                                                     -
                                                     -
                                                         No. 05-2631
          v.
                                                     ,
                                                      >
 MICHIGAN DEPARTMENT OF STATE POLICE and COL. -
                                                     -
                                                     -
 TADARIAL STURDIVANT, Director, Michigan State

                           Defendants-Appellees. -
 Police,

                                                     -
                                                    N
                     Appeal from the United States District Court
                    for the Eastern District of Michigan at Detroit.
                  No. 05-70869—Nancy G. Edmunds, District Judge.
                                     Argued: March 15, 2007
                                Decided and Filed: July 18, 2007
                     Before: COLE, CLAY, and GILMAN, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Douglas R. Mullkoff, KESSLER, MULLKOFF & HOOBERMAN, Ann Arbor,
Michigan, for Appellant. Margaret A. Nelson, MICHIGAN DEPARTMENT OF ATTORNEY
GENERAL, Lansing, Michigan, for Appellees. ON BRIEF: Douglas R. Mullkoff, KESSLER,
MULLKOFF & HOOBERMAN, Ann Arbor, Michigan, Elisha V. Fink, FINK LAW PLLC, Dexter,
Michigan, for Appellant. Margaret A. Nelson, MICHIGAN DEPARTMENT OF ATTORNEY
GENERAL, Lansing, Michigan, for Appellees. Miriam Aukerman, Michael J. Steinberg, Kary L.
Moss, ACLU FUND OF MICHIGAN, Detroit, Michigan, for Amicus Curiae.
                                       _________________
                                           OPINION
                                       _________________
        RONALD LEE GILMAN, Circuit Judge. This is an appeal from the district court’s award
of summary judgment to the state of Michigan in a putative class action case that challenges the
constitutionality of certain provisions of the State’s Sex Offender Registration Act (SORA). The
plaintiff represents one of two proposed classes of individuals who were assigned to “youthful
trainee status” under the State’s Holmes Youthful Trainee Act (HYTA) for sex offenses and, under
Michigan law, were then required to register as sex offenders. On appeal, the plaintiffs contend that
the district court erred when it found that they had suffered no due process or equal protection


                                                 1
No. 05-2631           Doe v. Mich. Dep’t of State Police et al.                                    Page 2


violations from the requirement that they register and appear on Michigan’s Public Sex Offender
Registry (PSOR). For the reasons set forth below, we AFFIRM the judgment of the district court.
                                        I. BACKGROUND
        The HYTA, Mich. Comp. Laws § 762.11 et seq., is essentially a juvenile diversion program
for criminal defendants under the age of 21. It provides in pertinent part as follows:
       [I]f an individual pleads guilty to a criminal offense, committed on or after the
       individual’s seventeenth birthday but before his or her twenty-first birthday, the court
       of record having jurisdiction of the criminal offense may, without entering a
       judgment of conviction and with the consent of that individual, consider and assign
       that individual to the status of youthful trainee.
Mich. Comp. Laws § 762.11(1) (2004). An assignment to youthful trainee status does not constitute
a conviction for a crime unless the court revokes the defendant’s status as a youthful trainee. Id.
§ 762.12. If and when the defendant successfully completes his or her status as a youthful trainee,
the court “shall discharge the individual and dismiss the proceedings.” Mich. Comp. Laws
§ 762.14(1). Once the individual is so released, he or she “shall not suffer a civil disability or loss
of right or privilege” because of the assignment. Id. § 762.14(2). “Unless the court enters a
judgment of conviction against the individual for the criminal offense . . . , all proceedings regarding
the disposition of the criminal charge and the individual’s assignment as youthful trainee shall be
closed to public inspection.” Id. § 762.14(4).
         A defendant assigned to youthful trainee status may, depending on the possible sentence for
the underlying offense, serve up to three years in custodial supervision, up to one year in the county
jail, or up to three years on probation. Id. § 762.13. In essence, a juvenile criminal defendant offers
a guilty plea to the court. The court then holds the plea in abeyance under the HYTA until the
defendant completes the requirements of the youthful-trainee program. At that time, the court
discharges the defendant and dismisses the proceedings.
        In 1994, Michigan adopted the SORA, Mich. Comp. Laws §§ 28.721-.736, in response to
Congress’s Jacob Wetterling Act, 42 U.S.C. § 14071, which requires states to establish registries
of convicted sex offenders. The SORA, as it was first enacted, was designed as a tool solely for law
enforcement agencies, and registry records were kept confidential. 1994 Mich. Pub. Acts 295 (“[A]
registration is confidential and shall not be open to inspection except for law enforcement
purposes.”). As of September 1, 1999, however, the SORA was amended to create the PSOR, which
can be accessed by anyone via the internet. The PSOR website has a disclaimer posted on its front
page that describes the registry as follows:
       This registry is made available through the Internet with the intent to better assist the
       public in preventing and protecting against the commission of future criminal sexual
       acts by convicted sex offenders.
       ...
       The registration requirements of the Sex Offenders Registration Act are intended to
       provide the people of this state with an appropriate, comprehensive, and effective
       means to monitor those persons who pose such a potential danger.
Michigan Public Sex Offender Registry, available at http://www.mipsor.state.mi.us (last visited
May 17, 2007). The PSOR provides a less-detailed version of the information available in the law
enforcement database, but includes names, aliases, addresses, physical descriptions, birth dates,
photographs, and specific offenses for all convicted sex offenders in the state of Michigan. Mich.
Comp. Laws § 28.728(4)(A).
No. 05-2631           Doe v. Mich. Dep’t of State Police et al.                                  Page 3


         When the Michigan legislature enacted the SORA, it also amended the HYTA to provide that
even individuals assigned to youthful trainee status were required to register as sex offenders. 1994
Mich. Pub. Acts 286 (adding a provision to § 14 of the HYTA stating that “[a]n individual assigned
to youthful trainee status for a listed offense enumerated in section 2 of the sex offenders registration
act is required to comply with the requirements of that act”). This new provision (Mich. Comp.
Laws § 762.14(3)) is in effect an exception to HYTA’s general provision (Mich. Comp. Laws
§ 762.14(4)) that “[u]nless the court enters a judgment of conviction against the individual . . . , all
proceedings regarding the disposition of the criminal charge and the individual’s assignment as
youthful trainee shall be closed to public inspection.” Mich. Comp. Laws § 762.14(4).
        The HYTA also requires that for every individual assigned to youthful trainee status “for a
listed offense enumerated in section 2 of [the SORA] . . . , [law enforcement agencies] shall register
the individual or accept the individual’s registration as provided under [the SORA].” Mich. Comp.
Laws § 762.13(6). As a result, the PSOR includes information about individuals who were assigned
to youthful trainee status under the HYTA, satisfied their obligations, and thus were never convicted
of their offense.
      Michigan amended the SORA and the HYTA again in 2004. Prior to the 2004 amendment,
the SORA defined the term “convicted” to include, in relevant part:
        (A)     Having a judgment of conviction or a probation order entered in a court
                having jurisdiction over criminal offenses, including a conviction
                subsequently set aside pursuant to Act No. 213 of the Public Acts of 1965,
                being sections 780.621 to 780.624 of the Michigan Compiled Laws.
        (B)     Being assigned to youthful trainee status pursuant to sections 11 to 15 of
                chapter II of the code of criminal procedure, Act No. 175 of the Public Acts
                of 1927, being sections 762.11 to 762.15 of the Michigan Compiled Laws.
1994 Mich. Pub. Acts 295. But effective October 1, 2004, the definition of “convicted” was
amended to include:
        (A)     Being assigned to youthful trainee status under sections 11 to 15 of chapter
                II of the code of criminal procedure, 1927 PA 175, MCL 762.11 to 762.15,
                before October 1, 2004.
        (B)     Being assigned to youthful trainee status under sections 11 to 15 of chapter
                II of the code of criminal procedure, 1927 PA 175, MCL 762.11 to 762.15,
                on or after October 1, 2004 if the individual’s status of youthful trainee is
                revoked and an adjudication of guilt is entered.
2004 Mich. Pub. Acts 240 (emphasis added).
       In addition, the HYTA was amended in 2004 to make it unavailable to most individuals
under 21 years of age who had been charged with criminal sexual conduct. Only those individuals
charged with so-called Romeo-and-Juliet offenses, defined as consensual sexual activity of a youth
between the ages of 14 and 21 with another youth between the ages of 13 and 16, are still eligible
for youthful trainee status. See Mich. Comp. Laws § 750.520d(1)(a) (2004) (sexual penetration of
a person between ages 13 and 16); Mich. Comp. Laws § 750.520e(1)(a) (2004) (sexual contact with
a person between ages 13 and 16 if the actor is five or more years older).
       The 2004 amendment was motivated, in part, by concerns that
“individuals who do not pose a danger to the public, and who do not pose a
danger of reoffending,” including “teens engaging in consensual sex,” are required to
No. 05-2631            Doe v. Mich. Dep’t of State Police et al.                                   Page 4


 register as sex offenders unnecessarily. House Legis. Analysis Section, Sex Offender
  Registration    Revisions: Juveniles, H.B. 4920, 5195 & 5240, at 1 (Mich. 2004),
http://www.legislature.mi.gov/documents/2003-2004/billanalysis/House/pdf/2003-HLA-4920-a.pdf
(hereinafter Sex Offender Registration Revisions: Juveniles).
         Both the original and the amended versions of the SORA, however, define the term
“convicted” to reach youthful trainees charged with certain sex offenses. The SORA thus creates
an exception to the HYTA’s provisions that “assignment of an individual to the status of youthful
trainee . . . is not a conviction for a crime” and that an “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.” Mich. Comp. Laws §762.14(2).
Notwithstanding the HYTA, the SORA thus requires youthful trainees charged with certain sex
offenses to register as “convicted sex offenders” and information about their identities and
“convictions” appears on the PSOR.
         This case involves two distinct groups of plaintiffs, one headed by pseudonymous plaintiff
John Doe and the other headed by pseudonymous plaintiff Samuel Poe. Both groups of plaintiffs
allege that their members were charged with criminal sexual offenses, assigned to youthful trainee
status, and “sentenced” under the HYTA on or before October 1, 2004. As of the date of the initial
complaint (March 7, 2005), however, the members of the first group, headed by John Doe, had
completed their HYTA obligations, been discharged from youthful trainee status, and had their
criminal proceedings under § 14 of the HYTA dismissed by the sentencing courts. They are
accordingly required to register as convicted sex offenders under the SORA and information about
them appears on the PSOR. In contrast, the group headed by Samuel Poe had not yet completed
their obligations under the HYTA program nor had their criminal proceedings been dismissed as of
the date of the complaint. They will be required to register as convicted sex offenders upon the
termination of their youthful trainee status, but are not presently so obligated. Had the Doe or Poe
plaintiffs been assigned to youthful trainee status on or after October 1, 2004, however, they would
have been exempt from the registration requirements of the SORA unless their youthful trainee
status was revoked prior to their final release under the HYTA.
        The plaintiffs have sued the Michigan Department of State Police and its then-director,
Tadarial Sturdivant, in his official capacity, alleging violations of their right to privacy, substantive
due process rights, and equal protection rights. (Both defendants will hereafter be collectively
referred to as “the State.”) In addition to declaratory and injunctive relief, the plaintiffs seek
attorney fees and costs. The State moved for summary judgment on all of the claims. In light of
prior decisions from the Supreme Court (addressing procedural due process arguments) and this
court (addressing substantive due process arguments) that had upheld similar sex-offender
registration laws, the district court granted the State’s motion. This timely appeal by the John Doe
plaintiffs followed.
                                            II. ANALYSIS
A.      Standard of review
        We review the district court’s grant of summary judgment de novo. Int’l Union v. Cummins,
Inc., 434 F.3d 478, 483 (6th Cir. 2006). Summary judgment is proper where no genuine issue of
material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). In considering a motion for summary judgment, the district court must construe the evidence
and draw all reasonable inferences in favor of the nonmoving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central issue is “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that
No. 05-2631           Doe v. Mich. Dep’t of State Police et al.                                 Page 5


one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986).
B.      Plaintiffs’ substantive due process claims
         The plaintiffs’ first amended class action complaint alleges two causes of action based upon
a substantive due process theory. Their first cause of action asserts that they have a “constitutionally
protected liberty interest and fundamental right to be left alone.” They claim that registration under
the SORA violates their liberty interest because personal identifying information about them is listed
on the PSOR and is accessible to the general public via the internet, despite the fact that they “have
not been convicted of a crime and are entitled to a second chance” under the HYTA. Furthermore,
the plaintiffs contend that the disclaimer language that appears on the PSOR labels them “currently
dangerous sex offenders” even though there has been no determination of their dangerousness and
despite the fact that youthful trainee status is available only to defendants who are found to be at low
risk to reoffend.
        Doe and Poe assert in their second cause of action that the SORA and its requirement that
youthful trainees register as convicted sex offenders violates their substantive due process rights “by
continuing to mandate their registration and public disclosure of information” about their offenses
“which is not made public under HYTA, and thus leads to an absurd result that is not in accord with
the plain language and legislative goals of the HYTA.” The district court considered both causes
of action to be alleging the same substantive due process claim, noting that the liberty interest raised
in the first cause of action “is best viewed as one of the ‘substantive’ rights provided by the Due
Process Clause of the Fourteenth Amendment.” In granting summary judgment to the State on both
of these causes of action, the district court relied on the Supreme Court’s decision upholding the
Connecticut sex offender registry against a due process challenge, Connecticut Department of Public
Safety v. Doe, 538 U.S. 1 (2003), and a Sixth Circuit case upholding the Tennessee sex offender
registry, Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999).
        The plaintiffs in Department of Public Safety raised a procedural due process challenge to
Connecticut’s sex offender registry, contending that the state’s failure to provide a hearing on a
registrant’s potential danger to the community violated their due process rights. This argument
failed, according to the Supreme Court, because Connecticut’s sex offender registry statute made
no distinction between offenders based on dangerousness. 538 U.S. at 7-8. Instead, the Connecticut
statute reflected the state’s decision that “the registry information of all sex offenders—currently
dangerous or not—must be publicly disclosed.” Id. at 7 (emphasis in original). The Court, however,
left open the question of whether a substantive due process challenge might succeed, noting:
       It may be that respondent’s claim is actually a substantive challenge to Connecticut’s
       statute recast in “procedural due process” terms. . . . But States are not barred by
       principles of “procedural due process” from drawing such classifications. Such
       claims must ultimately be analyzed in terms of substantive, not procedural, due
       process. Because the question is not properly before us, we express no opinion as
       to whether Connecticut’s [sex offender registry law] violates principles of
       substantive due process.
Id. at 8 (citations and quotation marks omitted).
       In the year following Department of Public Safety, a procedural due process challenge to the
Michigan SORA reached this court. Fullmer v. Mich. Dep’t of State Police, 360 F.3d 579, 582 (6th
Cir. 2004). The Fullmer court, following the lead of Department of Public Safety, left open the
substantive due process question while upholding the SORA against the procedural due process
No. 05-2631            Doe v. Mich. Dep’t of State Police et al.                                  Page 6


challenge. Id. at 582 (“[B]ecause the plaintiff in this case . . . did not rely on substantive due process
as a ground for relief, that issue is not before us at this time.”).
        After acknowledging that the plaintiffs in the present case were “attempting to litigate the
question that the Supreme Court explicitly left open,” the district court relied on the analysis set
forth in Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999), to grant summary judgment to the State
on the plaintiffs’ substantive due process challenge. Cutshall, like Department of Public Safety and
Fullmer, involved a procedural due process challenge to a state sex-offender registry statute. 193
F.3d at 469. The Cutshall plaintiff alleged that Tennessee’s Sex Offender Registration and
Monitoring Act violated the Double Jeopardy, Ex Post Facto, Bill of Attainder, Due Process, and
Equal Protection Clauses of the United States Constitution, in addition to the Eighth Amendment,
the constitutional right to interstate travel, and the constitutional right to privacy. Id. On appeal,
this court upheld the statute and reversed the district court’s decision that required the state to hold
a hearing on the offender’s alleged danger to the community prior to placing him or her on the
registry. Id. at 483.
        The Cutshall court’s discussion of this procedural due process challenge rested in large part
on a substantive due process analysis. Cutshall, like the plaintiffs in the present case, alleged that
the registry statute violated his due process rights because it imposed a stigma and deprived him of
employment and privacy. This court dismissed Cutshall’s argument on the basis that he did not
allege that the Tennessee statute limited “the ability of registrants to seek and obtain any type of
employment.” Id. at 479. The court concluded that “[a] charge that merely makes a plaintiff less
attractive to other employers but leaves open a definite range of opportunity does not constitute a
liberty deprivation.” Id. (citation and quotation marks omitted). Furthermore, the court found no
case recognizing “a general right to private employment.” Id.
         The district court in the present case also discussed the Eleventh Circuit case of Doe v.
Moore, 410 F.3d 1337 (11th Cir. 2005), which explicitly addressed a substantive due process
challenge to Florida’s sex-offender registry statute. After defining the right asserted as the
“right . . . to refuse [postconviction] registration of his or her personal information with Florida law
enforcement and prevent publication of this information on Florida’s Sexual Offender/Predator
website,” id. at 1344, the Eleventh Circuit found that this assertion did not constitute a
“fundamental right.” The Moore court accordingly reviewed the substantive due process challenge
under the rational-basis standard and determined that the statute satisfied Florida’s stated interest
in “protecting the public from sexual abuse.” Id. at 1345 (brackets omitted).
        Doe and Poe argue that the district court in the present case erred when it failed to address
the “interface of the HYTA with the SORA.” They also contend that the cases that the district court
relied on are inapplicable to the situation of youthful trainees who entered a deferred guilty plea to
a charge of criminal sexual conduct in exchange for a dismissal of the charges against them and a
promise of privacy. This argument principally relates to the Doe plaintiffs, who had completed their
obligations under the HYTA and had been discharged from youthful trainee status as of the time that
the present complaint was filed. Unlike the Poe plaintiffs, who had not yet been discharged from
youthful trainee status, the criminal records of the Doe plaintiffs had already been sealed. The Doe
plaintiffs thus contend that the registration requirement abrogated the State’s promise under the
HYTA that the charges against them would be dismissed and essentially would cease to exist.
C.      Substantive due process analysis
        The substantive component of the Due Process Clause protects “fundamental rights” that are
so “implicit in the concept of ordered liberty” that “neither liberty nor justice would exist if they
were sacrificed.” Palko v. Conn., 302 U.S. 319, 325 (1937). Such rights include “the rights to
marry, to have children, to direct the education and upbringing of one’s children, to marital privacy,
No. 05-2631            Doe v. Mich. Dep’t of State Police et al.                                   Page 7


to use contraception, to bodily integrity, and to abortion.” Washington v. Glucksberg, 521 U.S. 702,
720 (1997) (citations omitted). The Supreme Court has cautioned, however, that it has “always been
reluctant to expand the concept of substantive due process because guideposts for responsible
decisionmaking in this unchartered area are scarce and open-ended.” Id.
         When reviewing a substantive due process claim, we must first craft a “careful description
of the asserted right,” Reno v. Flores, 507 U.S. 292, 302 (1993), and then determine whether that
right is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered
liberty,” such that it can be considered a “fundamental right.” Glucksberg, 521 U.S. at 721.
Legislation that infringes on a fundamental right is reviewed under the strict-scrutiny test and will
be invalidated unless it is “narrowly tailored to serve a compelling state interest.” Flores, 507 U.S.
at 302.
        1.      The right asserted
         The amicus curia in this case, the ACLU of Michigan, states that the right asserted here is
“the right of youths adjudicated under HYTA to have offense information be kept private where
those youths, in exchange for a promise of privacy, pled guilty and gave up their [Sixth Amendment]
rights . . . .” In their first amended complaint, the plaintiffs assert a general right to have information
about their HYTA proceedings be excluded from public disclosure and “to be left alone by not being
falsely designated as currently dangerous sex offenders who pose a threat to the public safety.”
Having considered both views, we believe that the best definition of the right asserted by the
plaintiffs is that their HYTA records should be sealed and exempted from public disclosure because,
at the conclusion of their youthful trainee status, the criminal charges against them were or will be
dismissed. As a result, the right asserted also encompasses the right to be free from being labeled
a convicted sex offender when, under the HYTA, the plaintiffs were never convicted of such an
offense.
        2.      Implicit in the concept of ordered liberty
        Other circuit courts have considered substantive due process arguments against the
registration requirement of sex-offender registries. Each appellate court to have done so has found
that the registry laws are constitutional. See Moore, 410 F.3d at 1345 (holding that the right to
refuse to register under a sex-offender statute is not a fundamental right); Doe v. Tandeske, 361 F.3d
594, 597 (9th Cir. 2004) (per curiam) (“[P]ersons who have been convicted of serious sex offenses
do not have a fundamental right to be free from . . . registration and notification requirements. . . .”);
Gunderson v. Hvass, 339 F.3d 639, 643 (8th Cir. 2003) (concluding that the sex-offender registration
statute does not infringe the plaintiff’s fundamental right to a presumption of innocence); Paul P.
v. Verniero, 170 F.3d 396, 405 (3d Cir. 1999) (holding that the effects of registering under a
sex-offender registration statute fail “to fall within the penumbra of constitutional privacy
protection”).
        After giving due consideration to this issue, we now join our sister circuits in concluding that
the right asserted here is not a fundamental right deeply rooted in our Nation’s history. We reiterate
that “not all rights of privacy or interests in nondisclosure of private information are of constitutional
dimension, so as to require balancing government action against individual privacy.” Kallstrom v.
City of Columbus, 136 F.3d 1055, 1062 (6th Cir. 1998) (analyzing the substantive due process rights
of undercover police officers in not having their personal identifying information disclosed to
criminal defendants).
        We acknowledge, however, that the plaintiffs’ substantive due process claim presents a close
question because the sex-offender registry in fact discloses information about the plaintiffs that is
not entirely accurate. As the district court noted in its opinion, “[e]ven putting aside the parties[’]
arguments about the accurate definition of the word ‘convicted,’ there remains a problem with
No. 05-2631           Doe v. Mich. Dep’t of State Police et al.                                 Page 8


Michigan’s scheme: The information published about Plaintiffs would not otherwise be publicly
available.” These plaintiffs have not been convicted by a jury nor has a judge accepted their guilty
pleas. Instead, they have been “sentenced,” if that word is even applicable, to a form of a diversion
program designed to punish youthful offenders who have been deemed unlikely to reoffend. The
consideration offered by the State for the relinquishment of the plaintiffs’ Sixth Amendment rights
is that at the conclusion of their youthful trainee status, the charges against them will be dismissed
and their criminal records sealed. But the interaction of the SORA and the HYTA abrogates this
agreement for youthful trainees charged with sex offenses prior to October 1, 2004. This does not
rise to the level of a substantive due process violation based upon the relevant caselaw, but the
inconsistency and the harms to the plaintiffs from their inclusion on the registry are troubling and
noteworthy.
       3.      Rational-basis review
        We evaluate statutes that do not implicate a plaintiff’s fundamental rights by utilizing a
rational-basis standard of review. LensCrafters, Inc. v. Robinson, 403 F.3d 798, 806 (6th Cir. 2005).
Specifically, we ask whether the statute at issue is “rationally related to legitimate government
interests.” Glucksberg, 521 U.S. at 728. This standard is highly deferential; courts hold statutes
unconstitutional under this standard of review only in rare or exceptional circumstances.
        Michigan contends that its interest in the SORA and the PSOR is “to better assist law
enforcement officers and the people of this state in preventing and protecting against the commission
of future criminal sexual acts by convicted sex offenders.” Mich. Comp. Laws § 28.721a (2002).
The State further argues that the public has an “interest in knowing the whereabouts of sex
offenders” that “outweighs any privacy interest [that] Plaintiffs have in their criminal records, home
addresses and other public registration information.” Although we believe that the State’s
justification sweeps too broadly, especially with reference to the plaintiffs in the present case, we
are constrained to conclude that the rationale articulated in the statute itself satisfies the rational-
basis standard.
       4.      Stigma-plus test
         The plaintiffs next contend that the district court erred when it found that they did not meet
the “stigma-plus” test for finding that Michigan’s sex-offender registration requirement infringed
their liberty interests. As defined by the Supreme Court in Paul v. Davis, 424 U.S. 693 (1976), the
stigma-plus test is used to analyze a due process claim where the action taken by the state injures
the plaintiff’s reputation. “The frequently drastic effect of the ‘stigma’ which may result from
defamation by the government . . . does not establish the proposition that reputation alone, apart
from some more tangible interests such as employment, is either ‘liberty’ or ‘property’ by itself
sufficient to invoke the procedural due process protection of the Due Process Clause.” Id. at 701.
A successful plaintiff must therefore show that the state’s action both damaged his or her reputation
(the stigma) and that it “deprived [him or her] of a right previously held under state law” (the plus).
Id. at 708.
         The stigma-plus test is used to determine whether state action violates an individual’s
procedural due process rights. Id. at 710 n.5 (“Our discussion in Part III [discussing the stigma-plus
test] is limited to consideration of the procedural guarantees of the Due Process Clause and is not
intended to describe those substantive limitations upon state action which may be encompassed
within the concept of ‘liberty’ expressed in the Fourteenth Amendment.”). Our review of the
caselaw has failed to identify any case that applies the stigma-plus test to a substantive due process
claim. Cf. Brown v. City of Michigan City, Ind., 462 F.3d 720, 729-32 (7th Cir. 2006) (applying the
test to a procedural due process claim); Hill v. Borough of Kutztown, 455 F.3d 225, 235-36 (3d Cir.
No. 05-2631           Doe v. Mich. Dep’t of State Police et al.                                Page 9


2006) (same); O’Connor v. Pierson, 426 F.3d 187, 195-96 (2d Cir. 2005) (same); Fullmer, 360 F.3d
at 581-82 (same).
        Procedural due process challenges to state sex-offender registry statutes that mandate the
registration of all convicted sex offenders have been foreclosed by the Supreme Court’s decision in
Department of Public Safety. 538 U.S. at 1. The Supreme Court held that procedural due process
does not entitle an individual convicted of a sex offense to a hearing to determine whether he or she
is sufficiently dangerous to be included in the state’s convicted sex-offender registry where the
statute requires the registration of all sex offenders. 538 U.S. at 7-8 (holding that the state “has
decided that the registry information of all sex offenders—currently dangerous or not—must be
publicly disclosed” and that “[s]tates are not barred by principles of ‘procedural due process’ from
drawing such classifications”) (emphases in original).
         Michigan’s SORA likewise requires the registration of all convicted sex offenders. We have
previously considered a procedural due process challenge to the SORA and have concluded that it
has “the same purpose and . . . the same effect as its Connecticut counterpart.” Fullmer, 360 F.3d
at 582. Any challenge to the SORA that sounds in procedural due process is therefore foreclosed.
Moreover, the plaintiffs and the ACLU of Michigan both conceded in their briefs to the district court
that Department of Public Safety foreclosed any procedural due process claim against Michigan’s
sex-offender registry. We therefore conclude that the district court erred in applying the stigma-plus
test to the plaintiffs’ substantive due process claims, but find that this error was harmless because
the substantive due process claims also fail on the merits.
D.     Equal protection claim
        The plaintiffs further raise an equal protection argument against the SORA and the HYTA
requirements that they register as convicted sex offenders. “The Equal Protection Clause of the
Fourteenth Amendment . . . is essentially a direction that all persons similarly situated should be
treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). In the present
case, the plaintiffs and the ACLU of Michigan contend that Michigan can articulate no reason that
would justify (1) requiring youthful trainees charged with sex offenses to register while not requiring
youthful trainees charged with other offenses to do so; and (2) requiring Romeo-and-Juliet offenders
charged before October 1, 2004 to register as convicted sex offenders but not requiring
Romeo-and-Juliet offenders charged thereafter to so register.
        The district court concluded that neither of these distinctions between groups of youthful
trainees implicated a suspect classification that would trigger review under the strict-scrutiny
standard. Citing Cleburne for the “general rule . . . that legislation is presumed to be valid and will
be sustained if the classification drawn by the statute is rationally related to a legitimate state
interest,” 473 U.S. at 440, the district court determined that the rational-basis standard of review
applied.
        The district court then concluded that Michigan had articulated a rational basis for
distinguishing between youthful trainees involved in sex offenses and those involved in other kinds
of offenses. Michigan’s rationale was that sex offenders pose a particular public safety concern and
that the registration requirement was rationally related to the purpose of providing accurate,
up-to-date information about convicted sex offenders for use by law enforcement agencies and the
public.
       But the district court found the distinction between the pre-October 1, 2004 and post-October
1, 2004 Romeo-and-Juliet offenders more difficult to justify. Noting, however, that “it is the
province of the legislature to draw lines such as this,” and that “[t]he Michigan legislature is not
required to bestow this newly recognized benefit [of not being required to register] upon all past
No. 05-2631           Doe v. Mich. Dep’t of State Police et al.                                 Page 10


offenders,” the district court held that Michigan had “met the low threshold of rational basis
review.”
         On appeal, the plaintiffs and the ACLU of Michigan argue that the district court erred in
applying the rational-basis standard of review to their equal protection claim as it relates to the
Romeo-and-Juliet offenders. They note that the Supreme Court has not articulated the applicable
standard of review for equal protection challenges to legislative classifications affecting sex-
offender registration. See Dep’t of Public Safety, 538 U.S. at 10 (Souter, J., concurring) (“Today’s
case is no occasion to speak [to] . . . the standard of scrutiny that might be in order” for reviewing
an equal protection challenge to a sex offender registry statute.). But they contend that strict
scrutiny should apply because the effect of the HYTA and the SORA registration requirements is
to distinguish between similarly situated persons in terms of how they are classified for treatment
in the criminal justice system. See Skinner v. Okla. ex rel. Williamson, 316 U.S. 535 (1942) (holding
that imposing different restrictions on individuals who committed the same type of offense violates
the Equal Protection Clause).
       1.      Suspect class
         The Supreme Court has designated several classifications as suspect and accordingly subject
to heightened scrutiny under the Equal Protection Clause. These include classifications based on
race, alienage, national origin, gender, or illegitimacy. In the present case, the HYTA and the SORA
classify pre-October 2004 Romeo-and-Juliet offenders differently from post-October 2004
Romeo-and-Juliet offenders. We conclude, however, that the classification raised by the plaintiffs
does not implicate a suspect class and that rational-basis review is accordingly appropriate.
       2.      Rational-basis review
         As previously noted, a statute will be considered constitutional under rational-basis review
if there is “any reasonably conceivable state of facts that could provide a rational basis for” it. FCC
v. Beach Commc’ns, 508 U.S. 307, 313 (1993). The Supreme Court has explained the application
of this standard of review as follows:
       On rational-basis review, a classification in a statute . . . comes to us bearing a strong
       presumption of validity, and those attacking the rationality of the legislative
       classification have the burden to negative every conceivable basis which might
       support it. Moreover, because we never require a legislature to articulate its reasons
       for enacting a statute, it is entirely irrelevant for constitutional purposes whether the
       conceived reason for the challenged distinction actually motivated the legislature.
Id. at 314-15. The burden on the plaintiffs under rational-basis review is therefore a heavy one.
       Michigan’s stated purpose for the SORA is to “prevent [] and protect[] against the
commission of future criminal sexual acts by convicted sex offenders.” Mich. Comp. Laws
§ 28.721a. The Michigan legislature specified in the statute that it had “determined that a person
who has been convicted of committing an offense covered by this act poses a potential serious
menace and danger to the health, safety, morals, and welfare of the people, and particularly the
children, of this state.” Id.
       Nothing in the 2004 amendments altered the offenses with which the Romeo-and-Juliet
offenders are charged. Instead, the legislative analysis of the 2004 amendments to the HYTA and
the SORA indicates that the State was concerned that the SORA’s registration requirements were
overbroad and were reaching juveniles who did not pose a danger to the public because they had
been charged with sex offenses that were in fact consensual sexual encounters. Sex Offender
Registration Revisions: Juveniles, at 1. The result is that two youths who committed exactly the
No. 05-2631           Doe v. Mich. Dep’t of State Police et al.                               Page 11


same Romeo-and-Juliet offense on exactly the same day are treated differently if one was charged
on September 30, 2004 and the other on October 1, 2004.
        This kind of line-drawing, however, is the province of the legislature. See Rummel v. Estelle,
445 U.S. 263, 275 (1980) (holding that Texas’s recidivist statute did not violate the Eighth
Amendment and declining to engage in “extensive intrusion into the basic line-drawing process that
is pre-eminently the province of the legislature when it makes an act criminal”). Legislation must,
of necessity, take effect on some specific date. State legislatures not infrequently modify their
statutory schemes to the benefit of the accused or the convicted by, among other things, reducing
applicable penalties, increasing the rate of accrual of good-time credits, or exempting a class of
offenders from some previously applicable consequence of conviction. In many instances, the
legislature confers such benefits prospectively, thereby creating two classes of offenders
distinguishable by only the date of offense, conviction, plea, or sentencing.
        Where equal protection challenges have arisen to such legislative enactments, our sister
circuits, applying rational-basis review, have generally upheld these prospectively applicable
statutes. See, e.g., Foster v. Wash. State Bd. of Prison Terms & Parole, 878 F.2d 1233, 1235 (9th
Cir. 1989) (upholding a statute that prospectively established lower standard sentencing ranges);
Frazier v. Manson, 703 F.2d 30, 34-35 (2d Cir. 1983) (upholding a statute prospectively increasing
good-conduct credits that resulted in relatively longer terms of imprisonment for offenders sentenced
before the effective date); Colvin v. Estelle, 506 F.2d 747, 748 (5th Cir. 1975) (upholding a statute
that prospectively reduced the sentence for robbery by assault); Comerford v. Massachusetts, 233
F.2d 294, 295 (1st Cir. 1956) (same as Frazier).
        We conclude that the legislative classification created by the effective date of the 2004
amendments to the SORA does not violate the Equal Protection Clause. “Statutes create many
classifications which do not deny equal protection; it is only invidious discrimination which offends
the Constitution.” New Orleans v. Dukes, 427 U.S. 297, 304 n.5 (1976) (citation and quotation
marks omitted). We will uphold a statute’s classifications based on nonsuspect grounds against an
equal protection challenge if “there is a rational relationship between the disparity of treatment and
some legitimate government purpose.” Heller v. Doe, 509 U.S. 312, 320 (1993). This court has
previously concluded that the state’s interests in protecting public safety and in aiding effective law
enforcement are advanced by the SORA’s registration requirements. Cutshall, 193 F.3d at 482-83.
The 2004 amendments continue to advance public safety goals while simultaneously “weeding out”
those youthful trainees who have been deemed least likely to reoffend. See Sex Offender
Registrations: Juveniles, at 7 (“The main intent of the legislation is to weed out very young
offenders who have a good chance of being rehabilitated and also [to] weed out teenage lovers.”).
        What the Michigan legislature has in effect done is adopt a gradual approach, eliminating
the registration requirements for only those offenders assigned to youthful trainee status on or after
October 1, 2004. The legislature’s “gradual approach . . . is not constitutionally impermissible.”
Cf. Dukes, 427 U.S. at 305. Gradual elimination of the registration requirements advances
Michigan’s continuing legitimate interest in protecting public safety and aiding effective law
enforcement. By exempting only post-October 2004 offenders, the legislature can monitor the
situation to insure that low recidivism rates affirm their premise (that Romeo-and-Juliet offenders
do not pose a danger to public safety) before deciding whether to expand the exemption to
pre-October 2004 offenders. Cf. Sex Offender Registrations: Juveniles, at 7 (“It wouldn’t be
prudent to make the exemption too broad. Perhaps these changes should be reviewed to see if the
target goal is being addressed and if necessary, the act can be amended at a later time to increase
HYTA eligibility.”).
       Indeed, we note that the law grants limited relief to pre-2004 offenders. Once they have
remained registered for ten years following discharge from youthful trainee status, such offenders
No. 05-2631           Doe v. Mich. Dep’t of State Police et al.                                Page 12


may petition the original sentencing court to waive their registration requirement. The district court
observed that this “gives [the sentencing court] the opportunity to look at the recidivism of particular
pre-2004 offenders before giving them the same benefits of post-2004 offenders.” Doe v.
Sturdivant, No. 05-70869, 2005 WL 2769000, at *8 (E.D. Mich. Oct. 25, 2005).
        Although the 2004 amendments did not eliminate the obligation to register for all
Romeo-and-Juliet offenders at once, “a statute is not invalid under the Constitution because it might
have gone farther than it did.” Dukes, 427 U.S. at 305 (quotation marks omitted). “[T]he judiciary
may not sit as a superlegislature to judge the wisdom or desirability of legislative policy
determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.”
Id. at 303. Indeed, “rational-basis review in equal protection analysis ‘is not a license for courts to
judge the wisdom, fairness, or logic of legislative choices.’” Heller, 509 U.S. at 319 (quoting Beach
Commc’ns, 508 U.S. at 313).
        Here, the Michigan legislature deliberately chose to make the amendment applicable only
to those assigned to youthful trainee status on or after the effective date. The legislature may have
decided, as a matter of policy, to proceed cautiously in lifting previously applicable registration
requirements in the belief that Romeo-and-Juliet offenders would not recidivate, and with the intent
to revisit the matter to assess whether, in fact, recidivism rates among this population were low. At
the very least, we are unable to say that there is no rational relationship between the disparity in
treatment and a legitimate governmental purpose. Without commenting on the “wisdom, fairness,
or logic” of the legislative choice, we conclude that the classification created by the 2004
amendment survives rational-basis review.
E.      Development of the record
        The plaintiffs’ final contention is that the district court erred by granting summary judgment
to the State without allowing the plaintiffs more time to develop the record on the deprivations and
harms that they have allegedly suffered as a result of the SORA registration requirement. In
response, the State argues that the plaintiffs had the opportunity to present whatever evidence they
chose, and that they cannot now complain of not having presented more. Under Rule 56(e) of the
Federal Rules of Civil Procedure, the plaintiffs had the opportunity to oppose the State’s motion for
summary judgment with appropriate affidavits setting forth facts that would be admissible in
evidence.
         The plaintiffs in fact submitted 20 affidavits and the ACLU of Michigan submitted an
additional one. There is no evidence in the record that the plaintiffs ever asked for more time to
fully develop their opposition to the State’s motion. The district court therefore had no opportunity
to rule on the plaintiffs’ belated claim through, for example, a motion for relief from judgment under
Rule 60 of the Federal Rules of Civil Procedure. We deem this issue forfeited. To the extent that
the issue is not forfeited, we conclude that it fails on the merits.
                                        III. CONCLUSION
       For all of the reasons set forth above, we AFFIRM the judgment of the district court.
