                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 02-3617
                                 ___________

Brian Gunderson,                      *
                                      *
            Appellant,                *
                                      *
      v.                              * Appeal from the United States
                                      * District Court for the
Sheryl Ramstad Hvass, individually    * District of Minnesota.
and as the Commissioner for the       *
Minnesota Department of Corrections, *
                                      *
            Appellee.                 *
                                 ___________

                           Submitted: June 9, 2003

                                Filed: August 6, 2003
                                 ___________

Before BOWMAN, BEAM, and BYE, Circuit Judges.
                          ___________

BYE, Circuit Judge.

      Brian Gunderson appeals the district court's1 grant of summary judgment
dismissing his 42 U.S.C. § 1983 claim against the Commissioner for the Minnesota
Department of Corrections. We affirm.



      1
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
                                         I

     On March 31, 1998, Mr. Gunderson gave a ride home to a woman he met in a
bar. Two days later, Gunderson was charged with first degree criminal sexual
conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(1). The woman alleged

      upon arrival at her residence Gunderson asked if he could come in. She
      stated that she allowed Gunderson into her residence and upon entering
      the residence she told Gunderson that she wanted to go to sleep and he
      then attacked her. She stated that Gunderson began punching her in the
      head. She stated that Gunderson then took off her pants and she tried to
      struggle with Gunderson but he continued punching her and holding her
      arms. She stated that he then forcibly had sexual intercourse with her
      and did ejaculate inside her vagina.

Criminal Complaint for St. Louis County, File # K7-98-100480l; District Court
Docket # 16, Exhibit A.

       Gunderson denied any type of sexual misconduct, but admitted he and the
victim had a physical altercation on the night in question. Forensic tests performed
on a sexual assault kit containing biological samples collected from the victim
supported Gunderson's version of the events. Specifically, the Minnesota Bureau of
Criminal Apprehension (BCA) laboratory reports indicated "[e]xaminations of the
[victim's] vaginal swabs . . . did not detect the presence of semen." District Court
Docket # 20, Exhibit B. In addition, none of Gunderson's pubic hairs were found in
samples collected from the victim's pubic region. Id.

      After the BCA's report was prepared, Gunderson's attorney negotiated a plea
agreement under which the original complaint charging Gunderson with a sex offense
was dismissed in its entirety, and Gunderson pleaded guilty to a new complaint
charging him with third degree assault in violation of Minn Stat. § 609.223. On
August 17, 1998, Gunderson received three years of probation with a stayed sentence

                                        -2-
of fifteen months imprisonment. Less than a year later, Gunderson violated his
probation and was committed to the custody of the Minnesota Department of
Corrections. While in custody, he was told he would have to register under
Minnesota's predatory offender registration statute, notwithstanding the fact he had
never been convicted of a crime triggering predatory status.2 The statute requires
registration of those convicted of a non-predatory offense "arising out of the same set
of circumstances" as a predatory offense. Minn. Stat. § 243.166, subd. 1(a)(1).

       After complying with the registration requirements, Gunderson filed this suit
against the Commissioner for the Minnesota Department of Corrections. Gunderson
claimed he should not have to register because the original sexual assault charge
against him had been dismissed, and the subsequent complaint to which he pleaded
guilty did not charge a crime covered by the registration statute. Gunderson further
contended the statute violates his constitutional rights if it requires him to register as
a predatory offender even though he has never been convicted of a predatory offense.

       The parties filed cross-motions for summary judgment and the case was
referred to a federal magistrate judge.3 The magistrate judge issued a well-reasoned
42-page report to the district court, recommending the Commissioner's motion for
summary judgment be granted. The district court adopted the magistrate's
recommendation, concluding Gunderson's conviction for a non-sexual assault met the
criteria for registration under Minn. Stat. § 243.166, and the statute did not violate
Gunderson's constitutional rights. Gunderson v. Hvass, No. Civ. 01-646, 2002 WL
31163049, at *1-2 (D. Minn. Sept. 27, 2002). This timely appeal followed.


      2
        The predatory offender registration statute does not list a violation of Minn.
Stat. § 609.223 as one which requires registration, but does refer to "criminal sexual
conduct under section 609.342." Minn. Stat. § 243.166, subd. 1(a)(1)(iii).
      3
       The Honorable Raymond L. Erickson, United States Magistrate Judge for the
District of Minnesota.

                                           -3-
                                           II

       Gunderson contends he is not required to register under Minn. Stat. § 243.166.
Reviewing the statutory language de novo, American Simmental Ass'n v. Coregis Ins.
Co., 282 F.3d 582, 591 (8th Cir. 2002), we disagree. The statute clearly provides a
"person shall register under this section if . . . the person was charged with . . . and
convicted of [criminal sexual conduct under section 609.342] or another offense
arising out of the same set of circumstances." In Boutin v. LeFleur, 591 N.W.2d 711
(Minn. 1999), the Minnesota Supreme Court interpreted the "arising out of the same
set of circumstances" phrase as requiring the registration of a person convicted of a
non-sexual or non-predatory offense so long as the person "was convicted of another
offense which arose out of the same set of circumstances as the charged predatory
offense." Id. at 716.

      Boutin addressed a conviction for a non-predatory offense charged in the same
complaint as a predatory offense; Gunderson contends his situation is different
because his conviction arose from a complaint charging only a non-predatory offense.
We beg to differ. The statute does not require the non-predatory offense to be
charged in the same complaint as a predatory offense, only that the conviction arise
from the same set of circumstances. Notwithstanding Gunderson's arguments to the
contrary, his conviction for third degree assault clearly arose from the same set of
circumstances as the original charge for criminal sexual conduct. We agree with the
reasoning in Boutin, and conclude it controls in this case.

       Gunderson also contends the statute violates the Constitution if it requires
registration of a person convicted of a non-predatory offense that arises from the same
set of circumstances as a dismissed predatory offense. Gunderson claims a violation
of both his substantive and procedural due process rights. We review these claims
de novo. Hutchings v. United States Parole Comm'n, 201 F.3d 1006, 1009 (8th Cir.
2000).

                                          -4-
         To address Gunderson's substantive due process claim, we must determine
whether the registration statute implicates a fundamental right. If the statute
implicates a fundamental right, the state must show a legitimate and compelling
governmental interest for interfering with that right. E.g., Graham v. Richardson,
403 U.S. 365, 376 (1971). If the statute does not implicate a fundamental right, we
apply a less exacting standard of review under which the statute will stand as long
as it is rationally related to a legitimate governmental purpose. E.g., City of Cleburne
v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446 (1985).

       Gunderson argues the statute infringes upon a fundamental right, the
presumption of innocence. See e.g., State v. Edwards, 130 N.W.2d 623, 626 (Minn.
1964) ("[S]uch fundamental rights as presumption of innocence and proof beyond a
reasonable doubt, which, though not expressly enumerated in the constitution, are as
much a part thereof as though expressly set out"). The presumption of innocence is
only implicated by a statute that is punitive or criminal in nature, however, not a
regulatory law. The Minnesota Supreme Court has already concluded Minn. Stat. §
243.166 is nonpunitive in nature. Boutin, 591 N.W.2d at 717. Previous decisions of
this court also indicate such a statute is nonpunitive in nature. See Burr v. Snider,
234 F.3d 1052, 1054 (8th Cir. 2000) (upholding, in habeas context, North Dakota
Supreme Court's determination that sex offender registration statute was
nonpunitive); cf. Rem v. United States Bureau of Prisons, 320 F.3d 791, 794 (8th Cir.
2003) (holding 18 U.S.C. § 4042(b), a drug offender notification-of-release statute,
to be nonpunitive in nature because it was enacted for the purposes of public safety
and crime prevention). Indeed, the United States Supreme Court addressed a similar
state statute and reached the same conclusion about it. See Smith v. Doe, 538 U.S.
___, 123 S.Ct. 1140, 1149 (2003) (holding Alaska's sex offender registration statute
to be civil and nonpunitive in nature). After considering these decisions, we must
conclude Minnesota's predatory offender registration statute is nonpunitive in nature.




                                          -5-
       Since a fundamental right is not implicated, Minnesota need only show the
statute's registration requirements are rationally related to a legitimate governmental
purpose. The statute satisfies that standard. As the magistrate judge noted in the
report and recommendation:

      Given the realities of the plea bargaining system, by extending the
      registration requirements to persons who are charged with a predatory
      offense, but who plead guilty to a non-predatory charge that arises from
      the same circumstances, the Minnesota legislature was attempting to
      insure the inclusion in the registration rolls, of all predatory offenders,
      including those who take advantage of favorable plea agreements. The
      fact that such a registration policy may, in fact, require the inclusion of
      persons who are not predators, is not a fatal Constitutional defect, since
      the legislative purpose need only be reasonably related to the State's
      interest, and here that legislative purpose is.

Add. at 26; see also Boutin, 591 N.W.2d at 718 (concluding that keeping a list of
such offenders is rationally related to the legitimate state interest of solving crimes);
Valdez v. Rosenbaum, 302 F.3d 1039, 1046 (9th Cir. 2002) ("A reasonable
relationship between the governmental interest and the challenged restriction does not
require an exact fit, nor does it require showing a least restrictive alternative.")
(internal quotations and citations omitted). Since the statute is rationally related to
a legitimate government purpose, Gunderson's substantive due process claim fails.
See Klein v. McGowan, 198 F.3d 705, 710 (8th Cir. 1999) ("To meet his burden [of
establishing a substantive due process violation] a § 1983 plaintiff must demonstrate
that the government action complained of is truly irrational, that is something more
than arbitrary, capricious, or in violation of state law.") (internal quotations and
citation omitted).

       Finally, Gunderson claims the statute violates his procedural due process
rights. He claims his reputation has been injured by requiring him to register as a
predatory offender even though he has not been convicted of a predatory offense.

                                          -6-
Damage to reputation alone, however, is not sufficient to invoke the procedural
protections of the due process clause. Paul v. Davis, 424 U.S. 693, 701 (1976). The
loss of reputation must be coupled with some other tangible element to rise to the
level of a protectible property interest. Id. Sometimes this is referred to as the
"stigma plus" test. E.g., Pollock v. Baxter Manor Nursing Home, 706 F.2d 236, 241
(8th Cir. 1983) (McMillian, J., dissenting).

       Relying upon Doe v. Dep't of Pub. Safety, 271 F.3d 38 (2d Cir. 2001), a case
addressing Connecticut's sex offender registration statute, Gunderson contends he
satisfies the "stigma plus" test. Doe concluded the Connecticut statute violated a
registrant's procedural due process rights under the "stigma plus" test because the
registry was disseminated to the general public via the Internet, and allegedly implied
persons on the registry were currently dangerous. See Doe, 271 F.3d at 57-59.

       There are two problems with Gunderson's argument. First, unlike
Connecticut's statute, § 243.166 does not provide for the public dissemination of
Gunderson's registration. Gunderson's registration is considered "private data" under
Minnesota's Data Privacy Act, Minn. Stat. § 13.02, subd. 12, and "may be used only
for law enforcement purposes." Minn. Stat. § 243.166, subd. 7. Second, after the
parties briefed this case, Doe was reversed by the Supreme Court, Conn. Dep't of Pub.
Safety v. Doe, 538 U.S. ___, 123 S.Ct. 1160 (2003), eviscerating any persuasive
value the Second Circuit opinion may have had as applied to this case.

      Gunderson also contends the burdens of complying with the registration
requirements satisfy the "plus" part of the "stigma plus" test. We disagree. The
burden imposed upon Gunderson is a minimal one. The initial registration process
requires Gunderson to provide his fingerprints, a photograph, and information
regarding his whereabouts (residences, places of employment, make and model of
vehicle). Minn. Stat. § 243.166, subds. 4 & 4a. After that, Gunderson's only ongoing
obligation is to update his address information. Id. at subd. 3(b). "Such a

                                         -7-
requirement is a minimal burden and is clearly not the sufficiently important interest
the 'stigma-plus' test requires." Boutin, 591 N.W.2d at 718. Since Gunderson has not
identified a tangible, protectible property interest, his procedural due process claim
must fail as well.

                                         III

      We acknowledge the statute may lead to unfair results in some cases. We note,
for example, the statute would require registration of a person accused of both a
predatory offense and a non-predatory offense arising out of the same set of
circumstances who exercised his right to a trial and was acquitted of the predatory
offense but convicted of the non-predatory one. Nonetheless, such a conviction is
one the Minnesota legislature intended to trigger the statute's registration
requirements, as does Gunderson's. While perhaps unfair, under the precedents we
must apply, we discern no constitutional impediment to the legislature's decision.

      We therefore affirm the district court.

BEAM, Circuit Judge, concurring separately.

       Under the circumstances of this case, that is, that the police investigation
clearly established a lack of sexual contact between Mr. Gunderson and the
complaining woman, Minnesota Statute § 243.166, subd. 1(a)(1) and the Minnesota
Supreme Court's interpretation of the statute in Boutin v. LeFleur, 591 N.W.2d 711
(Minn. 1999), turn reason and fairness on its head. Nonetheless, I agree with the
Court that there is no Fourteenth Amendment violation established by Mr.
Gunderson. Accordingly, I concur.




                                         -8-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                           -9-
