In re TD

METER, EJ.

Respondent appeals as of right an order granting petitioner, TD, relief from the registration requirements of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. The trial court found that, as applied to TD, registration under the SORA is cruel or unusual punishment under Michigan’s Constitution. We reverse.

In 2007, a jury found that TD had committed second-degree criminal sexual conduct (CSC II) as defined in MCL 750.520c(l)(d)(ii) (sexual contact aided or abetted by one or more persons and involving force or coercion). The incident underlying TD’s juvenile adjudication occurred in 2006 when he was 15 years old. TD and another male classmate approached a female classmate at school. The case report indicates that TD punched the victim in the back and grabbed at her breast. He then held the victim in a chokehold and pulled her shirt up to expose her breast. TD’s accomplice pulled on the victim’s belt. In an incident report, the victim relayed that she felt threatened and scared during the attack, and she stated that TD let her go after she bit him on the arm.

After a dispositional hearing, TD was detained in a youth home and placed on probation. TD participated in a community-based treatment program, as well as group and individual therapy. TD successfully completed his treatment and was released from probation.

Subject to certain exemptions, the SORA provides that juveniles who have been adjudicated as responsible for a “listed offense,” see MCL 28.722(e),¹ must register on the public sex-offender registry, MCL 28.722(a)(iii); MCL 28.723. CSC II is a listed offense. MCL 28.722(e)(ix). CSC II committed under 750.520c(l)(d)(ii) is not subject to any exemptions pertaining to juvenile offenses, and thus TD had to fully register under the act after reaching age 18.² See MCL 28.728(3)(a).

Shortly after reaching age 18, TD petitioned the trial court for certain relief from the SORA’s registration requirements under MCL 28.728c. MCL 28.728c(3) states, “This section is the sole means by which an individual may obtain judicial review of his or her registration requirements under this act.” However, TD fell within the statute’s mandatory prohibition against granting relief from the registration requirements. MCL 28.728c(14) states that “[t]he court shall not grant a petition filed under this section if any of the following apply----” The statute then lists specific instances in which the offender is not eligible for relief from the SORA’s registration requirements. Juveniles adjudicated responsible for CSC II committed under 750.520c(l)(d)(ii) are not eligible for relief. MCL 28.728c(14)(c)(ii).

The trial court recognized that, under the statute, it did not have discretion to grant TD’s request. However, TD also challenged the constitutionality of the SORA’s registration requirements, and the trial court agreed that the statute was unconstitutional as applied to TD. TD argued, and the trial court agreed, that the statute results in cruel or unusual punishment under the Michigan Constitution, see Const 1963, art 1, § 16, as applied to. him.

We review de novo constitutional issues. In re Ayres, 239 Mich App 8, 10; 608 NW2d 132 (1999). The party challenging a statute as unconstitutional bears the burden of proof, and statutes are presumed constitutional. Id. “[T]he courts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.” Id.

In arguing that the SORA results in cruel or unusual punishment as applied to him, TD specifically relies on expert testimony provided at the evidentiary hearing on his petition for relief. TD’s expert testified that juvenile offenders can be successfully rehabilitated and pose a low risk of recidivism. TD argues that it is cruel or unusual to subject a rehabilitated, nondangerous juvenile offender such as himself to the stigma of public registration as a sex offender.

Before this Court is obligated to evaluate whether a punishment is cruel or unusual, it must first determine whether the challenged governmental action is actually a form of punishment. Id. at 14. This Court has previously considered whether the SORA imposes punishment. In People v Pennington, 240 Mich App 188, 191-192; 610 NW2d 608 (2000), this Court considered a challenge to the SORA in which the defendant argued that it violated the constitutional prohibition against ex post facto laws. This Court held that the SORA’s registration requirements are not punishment and, therefore, do not violate the prohibition of ex post facto laws. Id. at 193. Pennington adopted the reasoning of Lanni v Engler, 994 F Supp 849 (ED Mich, 1998), and Doe v Kelley, 961 F Supp 1105 (WD Mich, 1997), two federal cases holding that the SORA is directed at protecting the public and that it has no punitive purpose. Pennington, 240 Mich App at 193-197. People v Golba, 273 Mich App 603; 729 NW2d 916 (2007), also addressed whether the registration requirements of the SORA constituted punishment. In Golba, this Court held that requiring the defendant to register as a sex offender on the basis of judicially found facts did not implicate the defendant’s right to a jury trial because the SORA does not impose a penally or punishment. Id. at 620-621. Golba noted that the SORA promotes awareness of potentially dangerous individuals to members of a community and that this protection of the community is a legitimate governmental interest. Id. at 620.

This Court has also considered whether the SORA’s registration requirements constitute punishment as applied to juveniles. In Ayres, 239 Mich App at 21, this Court concluded that the SORA does not impose punishment. In that case, the 14-year-old respondent was found responsible for CSC II and was ordered to register as a sex offender pursuant to the SORA. Id. at 9-10. The respondent challenged this requirement, claiming that it violated the constitutional prohibition against cruel or unusual punishment. Id. at 10. The Ayres Court adopted the reasoning of the courts in Lanni and Kelley, quoting language from both indicating that the registration requirements are regulatory and not punitive. Id. at 14-18. The Ayres Court noted that the SORA “ ‘does nothing more than create a mechanism for easier public access to compiled information that is otherwise available to the public only through arduous research in criminal court files.’ ” Id. at 15, quoting Kelley, 961 F Supp at 1109.

At first blush, Ayres appears controlling in this case because Ayres specifically addressed a challenge by a juvenile to the SORA’s registration requirements and rejected the defendant’s challenge to the SORA as cruel or unusual under the Michigan Constitution. Ayres, 239 Mich App at 21. However, even though the Ayres respondent was required by the SORA to register as a sex offender, at the time of that opinion juvenile offenders were required to register on a database used only by law enforcement and not available to the public. Id. at 18-19. Since Ayres, the SORA has been amended to require some juvenile sex offenders to register on the public database upon reaching the age of majority. MCL 28.728. This change casts doubt on the holding of Ayres, because the Ayres Court partly based its conclusion that the SORA does not impose punishment on the fact that juveniles were not required to register publicly. Ayres, 239 Mich App at 18-19.

This Court questioned the holding in Ayres in In re Wentworth, 251 Mich App 560; 651 NW2d 773 (2002). The juvenile respondent in Wentworth was found responsible for CSC II. Id. at 561. On appeal, the respondent argued that the SORA’s registration requirements violated her due process rights and her right to privacy. Id. at 563, 566. After rejecting the respondent’s constitutional challenges to the SORA, this Court stated, in dicta, that “the recent amendment of the statute removing . . . confidentiality safeguards [for juveniles] raises questions about the continuing validity of our holding in Ayres” concerning the issue of cruel or unusual punishment. Id. at 569.

In People v Dipiazza, 286 Mich App 137, 146; 778 NW2d 264 (2009), the Court stated that the “essential underpinning of the conclusion in Ayres that the registration requirement imposed by SORA does not punish was the fact that strict statutory guidelines protected the confidentiality of registration data concerning juvenile sex offenders.” The Dipiazza Court noted that “[t]his premise is no longer valid. ...” Id. The Court thus went on to determine anew whether, in light of the specific facts of Dipiazza, the SORA registration requirements were punishment as applied to a juvenile. Id. at 147-153.

In Dipiazza, the defendant was adjudicated under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq., for attempted third-degree criminal sexual conduct. Id. at 140. When he was 18,³ the defendant had a consensual sexual relationship with someone who was “nearly 15.” Id. The defendant and the younger person were later married. Id. at 140 n 1. Under the HYTA, all proceedings regarding the criminal charge and disposition are closed to the public as long as the defendant fulfills certain requirements. Id. at 141-142. The defendant successfully completed his HYTA program and his case was dismissed, leaving him with no conviction on his record. Id. at 140. The SORA was amended, effective October 1, 2004, to exclude individuals such as the defendant in Dipiazza from the public-registration requirements. Id. at 143. The defendant’s offense had occurred before that date, however, and he thus challenged the SORA registration requirements as applied to him, arguing that the requirements constituted cruel or unusual punishment. Id. at 140-141.

The Court analyzed whether the registration requirements constituted punishment under the facts of that case. Id. at 147. It used the test adopted in Ayres, stating the following: “ [Determining whether government action is punishment requires consideration of the totality of circumstances, and particularly (1) legislative intent, (2) design of the legislation, (3) historical treatment of analogous measures, and (4) effects of the legislation.” Id. at 147 (quotation marks and citations omitted); see also Ayres, 239 Mich App at 14-15. Applying these factors to the present case, we find that the SORA does not impose punishment.

Concerning the first factor, we note that the Legislature expressly set forth its intent with regard to the SORA in MCL 28.721a:

The legislature declares that the sex offenders registration act was enacted pursuant to the legislature’s exercise of the police power of the state with the intent 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. The legislature has 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. The registration requirements of this act are intended to provide law enforcement and the people of this state with an appropriate, comprehensive, and effective means to monitor those persons who pose such a potential danger.

The Dipiazza Court held that the Legislature’s expressed intent was not indicative of a punitive statute because the statute was not meant to “chastise, deter, or discipline” offenders, but to assist in the prevention of and protection against future criminal sexual acts. Dipiazza, 286 Mich App at 148. However, the Dipiazza Court nevertheless reasoned that the expressed legislative intent did not favor viewing the defendant’s registration as nonpunitive because “[t]he implied purpose of SORA, public safety, is not served by requiring an otherwise law-abiding adult to forever be branded as a sex offender because of a juvenile transgression involving consensual sex during a Romeo and Juliet relationship.” Id. at 149. The Dipiazza Court also emphasized that if the defendant had been assigned to youthful trainee status after October 1, 2004, he would not have been subject to the public-registration requirements. Id.

The facts in this case are different. This case did not involve a consensual relationship, TD did not have his conviction discharged under the HYTA, and, unlike in Dipiazza, there was no pending or recent amendment that would affect TD’s registration obligations and make them appear inequitable. TD committed a predatory sexual offense and poses a more serious danger to the community than the defendant in Dipiazza. We find that the first factor, legislative intent, weighs in favor of finding the registration requirements to be nonpunitive because the Legislature specifically set forth a nonpunitive intent in the statute.

When determining whether governmental action is punishment, the next factor to be considered is the design of the legislation. Id. at 147. The Dipiazza Court recognized that the federal courts, in Kelley, 961F Supp at 1109, and Lanni, 994 F Supp at 853, found that the registration requirements were purely regulatory and remedial and that they did not impose any requirement or inflict suffering, disability, or restraint on the registered offender. Dipiazza, 286 Mich App at 149. The Dipiazza Court disagreed with that assessment, indicating that the SORA created public access to records that were previously sealed and in this way caused the loss of rights or privileges. Id. at 150. The Court stated:

Because MCL 762.14 is designed to prevent youthful trainees from suffering a disability or losses of privileges and rights except with respect to requiring registration, and because there was no public dissemination of the sex offender registry at the time, it seems clear the Legislature did not intend to punish youthful trainees by requiring them to register. The dissemination of nonpublic information through SOBA, however, had the opposite effect. The later SOBA amendment removing those assigned to trainee status after October 1, 2004, appeared to rectify that issue. [Id. at 150-151.] [⁴]

This reasoning does not apply to the present case. TD was not subject to the guarantees contained in the HYTA against civil disability or the loss of a right or privilege, and his record was never nonpublic according to MCR 3.925(D)(1), which states “Records of the juvenile cases, other than confidential files, must be open to the general public.”⁵ The second factor, the design of the legislation, weighs in favor of finding that the SORA’s registration requirements do not constitute punishment because the notification scheme is regulatory and remedial and does not cause a punitive release of previously sealed information.⁶

This Court next considers the historical treatment of analogous measures when determining whether governmental action is punishment. Dipiazza, 286 Mich App at 147. With regard to this factor, the Dipiazza Court stated:

However, no analogous measure exists, nor is there an historical antecedent that relates to requiring a defendant to register as a sex offender when the defendant was a teenager engaged in consensual sex and the defendant was assigned to youthful trainee status after October 1, 1995, but before October 1, 2004. [Id. at 151.]

The Dipiazza Court’s analysis was limited to the specific facts in that case. Therefore, the reasoning and analysis do not apply to TD; his offense was factually distinct.

In Ayres, this Court distinguished public registration from historical punishments such as branding, shaming, and banishment because public registration “ ‘does nothing more than provide for compilation of and public accessibility to information that is already a matter of public record.’ ” Ayres, 239 Mich App at 15, quoting Kelley, 961F Supp at 1110.⁷ Ayres further noted that the registration requirement does not impose any suffering, restraint, or obligation and stated:

“The notification provisions themselves do not touch the offender at all. While branding, shaming and banishment certainly impose punishment, providing public access to public information does not.... And while public notification may ultimately result in opprobrium and ostracism similar to those caused by these historical sanctions, such effects are clearly not so inevitable as to be deemed to have been imposed by the law itself.” \Ayres, 239 Mich App at 16, quoting Kelley, 961 F Supp at 1110.]

We agree with this analysis and find that factor three, the historical treatment of analogous measures, weighs in favor of finding that the SORA’s registration requirements are not punishment because they are not equivalent to historical practices such as branding, shaming, and banishment. Ayres, 239 Mich App at 15-16.

Finally, to determine whether the SORA imposes punishment this Court must consider the effects of the legislation. Dipiazza, 286 Mich App at 147. The public sex offender registry (PSOR) states that its purpose is “to better assist the public in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders.” See id. at 151 (quotation marks and citation omitted). The Dipiazza Court concluded that registration was an unfair branding under the facts of that case because the defendant was not dangerous and because he had no true conviction by virtue of the HYTA. Id. at 152. The Court also concluded that the defendant had been unable to find employment because of his status as a registered sex offender and as a result had suffered emotional and financial consequences. Id. at 152-153.

TD’s offense did not involve a consensual act, and he was not subject to the HYTA like the defendant in Dipiazza. Accordingly, much of the reasoning in Dipiazza is inapplicable. Moreover, in analyzing the effects of the legislation, the Ayres Court examined Kelley and noted that certain consequences of public registration such as harassment, assault, job loss, eviction, and dislocation are only indirect results of public registration and are not consequences imposed by the law itself. Ayres, 239 Mich App at 16, citing Kelley, 961 F Supp at 1110-1112. “ ‘Actions taken by members of the public, lawful or not, can hardly be deemed dispositive of whether legislation’s purpose is punishment.’ ” Ayres, 239 Mich App at 16, quoting Kelley, 961 F Supp at 1111. We adopt this reasoning and conclude that any consequences flowing from registration are not punishment in the present case.

Because the applicable factors weigh against a conclusion that the registration requirements of the SORA. constitute punishment as applied to TD, we hold that the trial court erred in its ruling. We note that the majority of the binding precedent holds that the SORA does not impose punishment, and the Dipiazza Court’s holding to the contrary appears confined to the specific facts of that case.

TD makes several additional arguments for upholding the trial court’s conclusion that the SORA’s registration requirements are unconstitutional as applied to this case. TD’s arguments have no merit. TD first argues that the SORA’s mandatory prohibition against granting relief from the registration requirements to certain offenders violates the doctrine of separation of powers. We note, initially, that the separation-of-powers doctrine does not mandate complete separation, and overlap between the functions and powers of the branches is permissible. People v Conat, 238 Mich App 134, 146; 605 NW2d 49 (1999). We further conclude that the statutory requirement that trial courts not grant relief from registration to offenders convicted of certain delineated offenses does not violate the doctrine of separation of powers. The SORA’s requirement that certain offenders not be granted relief from registration is well within the Legislature’s power; indeed, the Legislature does not have to grant any sex offender relief from registration. See O’Donnell v State Farm Mut Auto Ins Co, 404 Mich 524, 542; 273 NW2d 829 (1979) (discussing the Legislature’s power to make choices affecting society). Moreover, courts may still pass on constitutional questions pertaining to the SORA, as we do in our opinion today.

Next, TD argues that the SORA’s registration requirements do not bear a rational relationship to any legitimate governmental interest. Rational-basis review “tests only whether the legislation is reasonably related to a legitimate governmental purpose.” TIG Ins Co, Inc v Dep’t of Treasury, 464 Mich 548, 557; 629 NW2d 402 (2001). The SORA was enacted pursuant to the state’s police powers to prevent and protect against the commission of criminal sexual acts by convicted sex offenders, MCL 28.721a, and its purpose involves a legitimate governmental interest, see Golba, 273 Mich App at 620 (“SORA is a remedial regulatory scheme furthering a legitimate state interest of protecting the public[.]”). Further, a statute is constitutional “if the legislative judgment is supported by any set of facts, either known or which could reasonably be assumed, even if such facts may be debatable.” TIG Ins, 464 Mich at 557 (quotation marks and citation omitted). It is rational to require registration of sex offenders to enable the public to protect themselves, even if the risk of recidivism could be considered low in some cases.

TD next argues that the law is arbitrary and capricious. However, TD has waived this argument by failing to provide pertinent legal citations indicating under what circumstances a court may invalidate a statute for being arbitrary and capricious. See In re Contempt of Barnett, 233 Mich App 188, 191; 592 NW2d 431 (1998) (discussing waiver). At any rate, the Legislature made reasoned policy decisions in crafting the law, and we find nothing arbitrary or capricious in its wording.

Lastly, certain amici curiae have filed a brief to argue that the SORA’s registration requirements should be found unconstitutional as applied to TD because they are contrary to numerous public policies. Policy decisions, however, are for the Legislature. In re Juvenile Commitment Costs, 240 Mich App 420, 440; 613 NW2d 348 (2000).

Reversed.

M. J. KELLY, J., concurred with METER, EJ.

1 The Legislature amended SORA. effective July 1, 2011. 2011 PA 17. Accordingly, some of the statutory citations used in this opinion will change after that date.

2 As stated in In re Wentworth, 251 Mich App 560, 564; 651 NW2d 773 (2002): “In 1999, in response to a federal mandate, the Legislature amended the SORA, adding public notification provisions.... A juvenile offender is initially exempt from inclusion within the public database; however, for CSC II violations, that exemption ends when the individual becomes eighteen years old.”

3 As noted in Dipiazza, 286 Mich App at 141, the “HYTA is essentially a juvenile diversion program for criminal defendants under the age of 21.”

4 The HYTA specifically mandates that individuals given youthful trainee status “shall not suffer a civil disability or loss of right or privilege ....” MCL 762.14(2); see also Dipiazza, 286 Mich App at 150. The HYTA then lists registration under the SOBA as an exception to this mandate. MCL 762.14(3); see also Dipiazza, 286 Mich App at 150. The Dipiazza Court viewed this exception as an explicit recognition that the SORA’s registration requirements cause a disability and a loss of a right or privilege, at least as applied to a youthful trainee. Id.

5 According to MCR 3.925(E)(2)(c), TD’s juvenile record must be destroyed when he becomes 30 years old. However, the fact remains that the record will have been public before that time.

6 The Dipiazza Court also stated:

That defendant is suffering a disability and a loss of privilege is further confirmed by the fact that there are not strict limitations on public dissemination as there were in Lanni. The Lanni court noted that the registry limited searches so that a person living in a particular zip code can only search that zip code on the registry. Lanni, [994 F Supp] at 853. Consequently, the court in Lanni concluded that a law designed to punish a sex offender would not contain such strict limitations on dissemination. Id. Searches on the sex offender registry are no longer limited, however, to the searcher’s zip code, but rather the registry provides a searcher with information about every person registered as a sex offender living in every zip code in the state. [Dipiazza, 286 Mich App at 151.]

We do not find that this change in the ability to search the registry transforms the SOBA into a punitive scheme.

7 We note, again, that the Ayres Court specifically adopted the analyses of Lanni and Kelley as its own. Ayres, 239 Mich App at 18.