                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 07a0450p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                        X
                                Plaintiffs-Appellants, -
 JOHN DOES II & III,
                                                         -
                                                         -
                                                         -
                                                             No. 06-2498
            v.
                                                         ,
                                                          >
 COL. PETER MUNOZ, in his official capacity as           -
                                                         -
                                                         -
 Director of the MICHIGAN DEPARTMENT OF STATE

                                 Defendant-Appellee. -
 POLICE,

                                                         -
                                                         -
                                                        N
                         Appeal from the United States District Court
                        for the Eastern District of Michigan at Detroit.
                       No. 06-10214—Patrick J. Duggan, District Judge.
                                         Argued: September 9, 2007
                                 Decided and Filed: November 13, 2007
               Before: CLAY and GIBBONS, Circuit Judges; HOOD, District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: Thomas Lazar, LAZAR CONSULTING SERVICES, Bingham Farms, Michigan, for
Appellants. Ann M. Sherman, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL,
Lansing, Michigan, for Appellee. ON BRIEF: Thomas Lazar, LAZAR CONSULTING
SERVICES, Bingham Farms, Michigan, for Appellants. Margaret A. Nelson, MICHIGAN
DEPARTMENT OF ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
         JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs-appellants John Does II–III appeal the
district court’s order dismissing their challenge to the constitutionality of Michigan’s Setting Aside
Convictions Act (“SACA”), Mich. Comp. Laws §§ 780.621-780.624 (2002), and Sex Offender
Registration Act (“SORA”), Mich. Comp. Laws §§ 28.721-28.732 (2002). On appeal, plaintiffs
contend that the district court erred when it found that they had suffered no substantive due process

        *
          The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by
designation.


                                                         1
No. 06-2498           Does II and III v. Munoz                                                  Page 2


or equal protection violations from the requirement that they register and appear on Michigan’s
Public Sex Offender Registry (“PSOR”). For the following reasons, we affirm the district court’s
decision.
                                                   I.
        The SACA allows a person convicted of not more than one crime to file an application with
the convicting court for the entry of an order “setting aside” the conviction. Mich. Comp. Laws
§ 780.621(1). Certain convictions are not eligible for setting aside. Id. § 780.621(2). An
application shall not be filed until at least five years following sentencing or completion of any term
of imprisonment, whichever occurs later. Id. § 780.621(3). The court may enter an order setting
aside the conviction if it determines that the circumstances and behavior of the applicant from the
date of the applicant’s conviction to the filing of the application warrant setting aside the conviction
and that setting aside the conviction is consistent with the public welfare. Id. § 780.621(9). Upon
entry of the order, “the applicant shall be considered not to have been previously convicted,” except
for purposes of registration under the SORA. Id. § 780.622(1), (3). A nonpublic record of the
applicant’s conviction is retained by the state police and is available to various government entities
for use in determining whether the applicant is required to register under the SORA, id.
§ 780.623(2)(f), a use to which the applicant consents in his application, id. § 780.621(4)(f).
         The SORA requires anyone “convicted” of an offense listed in § 28.722(e) to register as a
sex offender. Id. § 28.723. As used in the SORA, “convicted” means, among other things,
“[h]aving a judgment of conviction or a probation order entered in any court having jurisdiction over
criminal offenses, . . . including a conviction subsequently set aside under [the SACA].” Id.
§ 28.722(a)(i). A conviction for criminal sexual conduct in the fourth degree is a listed offense
requiring registration. Id. §§ 28.722(e)(x), 750.520e. The registration information is compiled into
a database, the PSOR, from which the public can access the names, aliases, addresses, physical
descriptions, birth dates, photographs, and specific offenses for all registered sex offenders in the
state of Michigan. Id. §§ 28.728(2), (4), (6), 28.730(2), (3). Plaintiffs allege that they are residents
of Michigan who were convicted of criminal sexual conduct in the fourth degree and that an order
has been entered setting aside their convictions pursuant to the SACA.
         Plaintiffs claim that (1) their inclusion on the PSOR violates their substantive due process
right because their records, which are for all other purposes nonpublic, are included in the PSOR
even though their convictions have been set aside pursuant to the SACA; and (2) that the SACA and
the SORA violate their Equal Protection rights because they treat persons convicted of sexual
offenses differently than persons convicted of other offenses. We consider each of these arguments
in turn.
                                                  II.
        As we have previously explained, “The doctrine that governmental deprivations of life,
liberty or property are subject to limitations regardless of the adequacy of the procedures employed
has come to be known as substantive due process.” Bowers v. City of Flint, 325 F.3d 758, 763 (6th
Cir. 2003) (quoting Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216 (6th Cir. 1992) (citation
omitted)). These limitations are meant to provide “heightened protection against government
interference with certain fundamental rights and liberty interests.” Seal v. Morgan, 229 F.3d 567,
574 (6th Cir. 2000) (quoting Washington v. Glucksberg, 521 U.S. 702, 720 (1997)). As a result,
“Government actions that burden the exercise of those 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.” Id. at 574 (citing United States v. Brandon, 158 F.3d 947, 956 (6th Cir.
1998)); see also Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 393 (6th Cir. 2005).
No. 06-2498           Does II and III v. Munoz                                                   Page 3


        However, identifying a new fundamental right subject to the protections of substantive due
process is often an “uphill battle,” Blau, 401 F.3d at 393, as the list of fundamental rights “is short.”
Seal, 229 F.3d at 575. Thus, “When reviewing a substantive due process claim, we must first craft
a ‘careful description of the asserted right . . . .’” Doe XIV v. Mich. Dep't of State Police, 490 F.3d
491, 500 (6th Cir. 2007) (citing Reno v. Flores, 507 U.S. 292, 302 (1993)). To qualify, such rights
must be “deeply rooted in this Nation’s history and tradition,” Moore v. City of East Cleveland, 431
U.S. 494, 503 (1977), or “implicit in the concept of ordered liberty,” such that “neither liberty nor
justice would exist if they were sacrificed. . . .” Washington v. Glucksberg, 521 U.S. 702, 721 (1997)
(internal quotation marks omitted); see also Doe XIV, 490 F.3d at 500; Blau, 401 F.3d at 394.
        Plaintiffs assert that inclusion on the PSOR burdens their right to privacy and creates
difficulties in retaining housing, keeping and finding employment, pursuing educational
opportunities, and pursuing family relationships. Plaintiffs thus conclude that their inclusion on the
PSOR denies them substantive due process because it infringes on their fundamental right to
privacy. In their privacy argument, plaintiffs particularly rely upon the interaction of the SORA
registration requirement with the SACA provision which requires that the fact of their conviction
be publicly unavailable after the convictions have been said aside.
         In Doe XIV, we considered arguments similar to those of plaintiffs in this case. See Doe XIV,
490 F.3d at 497-99 (asserting right to privacy and deprivation of employment). The Doe XIV
plaintiffs relied upon the interaction between the SORA registration requirement and Michigan’s
Holmes Youthful Trainee Act (“HYTA”), Mich. Comp. Laws § 762.11 et seq. (2002). Doe XIV, 490
F.3d at 500. The HYTA allows certain youthful offenders to plead guilty and complete a youth
training program, during which the entry of a judgment of conviction is held in abeyance. Mich.
Comp. Laws § 762.11. If the offender successfully completes the program, the charges are
dismissed and there is no conviction. Id. § 762.14. A youthful sexual offender must nevertheless
register for the PSOR. Id. § 762.14(3). As characterized by the Doe XIV panel, “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.” 490 F.3d at 500. Similarly, in this case, the right asserted by plaintiffs is a
right to have their records exempted from public disclosure because a court order has set aside their
convictions pursuant to the SACA.
        Plaintiffs’ argument that this case implicates a fundamental right fails for two reasons. First,
plaintiffs are correct that their right to privacy in their records is statutorily created. See Mich.
Comp. Laws §§ 780.622(1); 780.623(2). They fail to note, however, that the statute creates an
exception to the privacy of records for the PSOR. See Mich. Comp. Laws §§ 780.622(3);
780.623(2)(f). Plaintiffs do not argue that this right has any other source and do not dispute the
cases holding that they lack a fundamental right to privacy in information that is already public. See,
e.g., Cox Broad. Corp. v. Cohn, 420 U.S. 469, 494-95 (1975) (stating that “the interests in privacy
fade when the information involved already appears on the public record”); McNally v. Pulitzer Pub.
Co., 532 F.2d 69, 77 (8th Cir. 1976) (citing Cox Broadcasting Corp., 420 U.S. at 494-95); Kelly v.
Sterling Heights, 1991 U.S. App. LEXIS 24861, at *5 (6th Cir. October 16, 1991) (“Where the
information disclosed is already public, there is no valid expectation of privacy because privacy
interests diminish when the material involved is publicly available.”). Here, plaintiffs’ convictions
were public and remained public because of the exception in the SACA for registration on the
PSOR.
        Second, Doe XIV’s rejection of the youthful offenders’ substantive due process claims
forecloses plaintiffs’ substantive due process claims in this case. 490 F.3d at 500-02. The only
meaningful distinction between this case and Doe XIV is that the Doe XIV youthful offender
plaintiffs actually had a somewhat stronger claim of infringement of a fundamental right than our
plaintiffs. In Doe XIV, the plaintiffs’ records were not publicly available because their judgments
No. 06-2498               Does II and III v. Munoz                                                              Page 4


of conviction were not entered and their charges were ultimately dismissed, but the interaction of
the SORA and the HYTA labeled them as sex offenders on the PSOR. Id. at 501. Although the
court concluded that the PSOR disclosure “does not rise to the level of a substantive due process
violation,” it noted that the youthful sexual offenders’ inclusion on the PSOR was “troubling”
because the PSOR did not accurately reflect their status as individuals against whom charges had
been dismissed. Id. Because the SACA leaves convictions intact for purposes of the SORA and
thus the PSOR accurately reflects plaintiffs’ status, no “troubling” aspect is present here. Under Doe
XIV’s1 reasoning, therefore, plaintiffs here have not stated a claim of violation of a fundamental
right.
         We conduct rational-basis review of statutes that do not implicate a plaintiff’s fundamental
rights. LensCrafters, Inc. v. Robinson, 403 F.3d 798, 806 (6th Cir. 2005). The question is whether
the statute at issue is “rationally related to legitimate government interests.” Glucksberg, 521 U.S.
at 728. Reviewing the same statute, this court has already concluded that Michigan has a rational
basis for publicizing plaintiffs’ otherwise nonpublic criminal records. Doe XIV, 490 F.3d at 501;
see Mich. Comp. Laws § 28.721a (stating that the purpose of the SORA and the PSOR 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”). Therefore, plaintiffs’
substantive due process claim fails.
                                                          III.
        Plaintiffs also raise an equal protection challenge against the SACA and the SORA because
they treat persons convicted of sexual offenses differently from persons convicted of other offenses.
“The Equal Protection Clause prohibits states from making distinctions which either burden a
fundamental right, target a suspect class, or intentionally treat one differently from others similarly
situated without any rational basis for the difference.” Wilson v. Morgan, 477 F.3d 326, 333 (6th
Cir. 2007) (internal quotation marks omitted). Plaintiffs make an attempt to argue that their claim
should be reviewed under strict scrutiny. (Appellants’ Br. 26. (citing only J. Nowak and R. Rotunda,
Constitutional Law § 14.41, at 1082 (7th ed. 2004)).) Yet, notably, the cases upon which plaintiffs
rely for striking down laws that make distinctions among ex-offenders each applied rational-basis
review. See Miller v. Carter, 547 F.2d 1314, 1316 (7th Cir. 1977) (holding that “[s]uch distinctions
among those members of the class of ex-offenders are irrational”); Nixon v. Commw., 839 A.2d 277,
289 (Pa. 2003); Mixon v. Commw., 759 A.2d 442, 451 (Pa. Commw. 2000). Plaintiffs have not
asserted a fundamental right, as explained above, and are not members of a suspect class, Cutshall
v. Sundquist, 193 F.3d 466, 482 (6th Cir. 1999). Therefore, the challenged distinction is reviewed
under the rational-basis test.
        This court has already held that the state has a rational basis for treating sex offenders
differently from other offenders by requiring them to register. Id. at 482-83. Therefore, plaintiffs
again rely on the interaction of the SORA with the SACA. Plaintiffs argue that no rational basis
exists for treating sex offenders differently from other offenders because, under the SACA, a court
has determined that they are “not dangerous and . . . do not pose a threat to the public.” To be
accurate, under the SACA, the court makes only a determination “that setting aside the conviction
is consistent with the public welfare.” Mich. Comp. Laws § 780.621(9). However, when the state
court finds that setting aside the conviction of a sex offender is consistent with the public welfare,
it knows that the sex offender will continue to be subject to the registration requirements of the
SORA. Therefore, the state court determines that a sex offender does not pose a threat to the public

         1
          Plaintiffs obscure the correct analysis by urging us to apply the “stigma plus” test. That test applies only to
procedural due process claims. See Doe XIV, 490 F.3d at 502 (stating that “The stigma-plus test is used to determine
whether state action violates an individual’s procedural due process rights”) (emphasis added) (citing Paul v. Davis, 424
U.S. 693, 710 n.5 (1976)).
No. 06-2498          Does II and III v. Munoz                                               Page 5


only to the extent that the offender remains on the PSOR. Furthermore, the state court’s
determination is not a guarantee that the offender poses no threat. Despite the determination under
the SACA, it remains rational for Michigan to seek “to provide law enforcement and the people of
[Michigan] with an appropriate, comprehensive, and effective means to monitor those persons who
pose such a potential danger.” Id. § 28.721(a). Therefore, plaintiffs’ equal protection challenge
fails.
                                                IV.
       For the foregoing reasons, we affirm the decision of the district court.
