Millard v. Rankin

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS August 20, 2020

Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

DAVID MILLARD; EUGENE KNIGHT;
ARTURO VEGA,

Plaintiffs - Appellees,

v. No. 17-1333

JOHN CAMPER, in his official capacity as
Director of the Colorado Bureau of
Investigation,

Defendant - Appellant.

-------------------------------------------------

MIKE HUNTER, Attorney General of the
State of Oklahoma; DEREK SCHMIDT,
Attorney General of the State of Kansas;
HECTOR H. BALDERAS, Attorney
General of the State of New Mexico;
SEAN REYES, Attorney General of the
State of Utah; PETER K. MICHAEL,
Attorney General of the State of Wyoming;
17 SCHOLARS WHO STUDY SEX
OFFENSES; NATIONAL ASSOCIATION
FOR RATIONAL SEXUAL OFFENSE
LAWS,

Amici Curiae.
_________________________________

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:13-CV-02406-RPM)
_________________________________
Melanie J. Snyder, Chief Deputy Attorney General of Colorado (Frederick R. Yarger,
Solicitor General of Colorado; Chris W. Alber, Senior Assistant Attorney General of
Colorado; James X. Quinn, First Assistant Attorney General of Colorado; Robert C.
Huss, Assistant Attorney General of Colorado; Russell D. Johnson, Assistant Solicitor
General of Colorado, with her on the briefs), for Petitioner-Appellant.

Ty Gee, Haddon, Morgan and Foreman P.C., Denver, Colorado (Adam Mueller, Haddon,
Morgan and Foreman P.C.; Alison Ruttenberg; Mark Silverstein, American Civil
Liberties Union of Colorado; Sara R. Neel, American Civil Liberties Union of Colorado,
with him on the brief), for Respondent-Appellee.
_________________________________

Before HARTZ, SEYMOUR, and EID, Circuit Judges.
_________________________________

EID, Circuit Judge.
_________________________________

Plaintiff-Appellees David Millard, Eugene Knight, and Arturo Vega challenge

the constitutionality of Colorado’s Sex Offender Registration Act (CSORA). The

district court held CSORA was unconstitutional as applied to the Appellees1 because

the statute inflicted cruel and unusual punishment and violated substantive due

process guarantees. Additionally, the district court held that the state courts’

application of CSORA’s deregistration procedures to Vega violated his procedural

due process rights. Defendant-Appellant, the State,2 appeals from the entirety of the

1
For simplicity and readability, we will refer to Millard, Knight, and Vega as “the
Appellees” throughout this opinion, unless discussing one of them individually.
2
The original appellant was Michael Rankin, who was sued in his official capacity as
the then-Director of the CBI. The current appellant, John Camper, replaced Rankin as the
Director of the CBI in January 2018, and under Fed. R. App. P. 43(c)(2), he is substituted
for Rankin as the Appellant in this appeal. For simplicity and readability, we will refer to
the Appellant as “the State” throughout this opinion.
2
district court’s decision. Because the district court’s ruling contravenes binding

Supreme Court and Tenth Circuit precedent, we reverse.

I. BACKGROUND

A. Development of sex offender registration acts and CSORA

States began adopting sex offender registry laws in the early 1990’s in

response to the high-profile sexual assaults and murders of children by individuals

with prior sex-offense convictions. See Nichols v. United States, 136 S. Ct. 1113,

1116 (2016); see also 34 U.S.C. § 20901(1)–(17) (listing names). In 1994, Congress

“conditioned federal funds on [s]tates’ enacting sex-offender registry laws meeting

certain minimum standards.” Id. (discussing the Jacob Wetterling Crimes Against

Children and Sexually Violent Offender Registration Act). “By 1996, every State,

the District of Columbia, and the Federal Government had enacted some variation of”

a sex-offender registry. Smith v. Doe, 538 U.S. 84, 90 (2003).

In 2006, Congress revised its federal sex-offender registry requirements with

the adoption of the Sex Offender Registration and Notification Act (SORNA), Pub.

L. No. 109-248, §§ 101–155, 120 Stat. 587, codified at 42 U.S.C. § 16901 et seq.

(2006 ed.), transferred to 34 U.S.C. § 20901 et seq. (2017 ed.). With SORNA,

Congress created a nationwide registry intended to “protect the public from sex

offenders.” 34 U.S.C. §§ 20901, 20921 (national registry). SORNA continues to

condition federal funding to states’ maintenance of their own sex-offender registries,

but also requires states (and registrants) to provide registry information to the federal

government. Id. at §§ 20913(c), 20914, 20918. SORNA requires states “make

3
available on the Internet, in a manner that is readily accessible to all jurisdictions and

to the public,” pertinent information “about each sex offender in the registry.” Id. at

§ 20920(a). And, the website must be searchable by zip code or geographic area. Id.

Colorado has maintained some variant of a sex-offender registry since 1991.

See 1991 COLO. SESS. LAWS, ch. 69. It is against this legal backdrop that, in 2002,

Colorado adopted CSORA. 2002 COLO. SESS. LAWS, ch. 297. CSORA’s provisions

render Colorado compliant with SORNA.3 CSORA has three basic elements: (1)

registration by sex offenders with local law enforcement; (2) compilation of a sex-

offender registry by the Colorado Bureau of Investigation (CBI); and (3) limited

public disclosure of some of the information contained in the registry. The statutory

text itself explains that “it [was] not the general assembly’s intent that the

information [contained in the Registry] be used to inflict retribution or additional

punishment on any person,” but rather CSORA was intended to address “the public’s

need to adequately protect themselves and their children” from those with prior

sexual convictions. COLO. REV. STAT. § 16-22-110(6)(a); see also id. § 112(1).

Registration is required under CSORA if a person is (a) convicted of any of

the enumerated thirty-plus misdemeanor or felony offenses, (b) convicted of any

offense in which the “underlying factual basis involves” any of those offenses, or (c)

released from the custody of the state department of corrections after serving a

3
See Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering,
and Tracking, “Substantially Implemented,” https://smart.ojp.gov/sorna/substantially-
implemented (last updated May 13, 2020) (noting Colorado has “substantially implemented”
SORNA’s requirements).
4
sentence for any of the offenses or an offense with the requisite “underlying factual

basis.” Id. at § 103(1)–(2). Juveniles must also register but can petition for

deregistration if they satisfy certain criteria. Id. at § 103(5)(a).

Persons subject to the registration requirement must register with local law

enforcement and disclose certain personal information including their name, date of

birth, address, place of employment, all names previously used, the identity of any

school they are attending, vehicle identification number, and, for certain registrants,

email addresses. Id. at § 109(1).4 Each registrant must also provide a current

photograph and a set of fingerprints. Id. at § 108(6). Most registrants must register

annually, but sexually-violent offenders and those convicted of particularly serious

offenses must register quarterly. Id. at § 108(1)(b), (d).

The information obtained pursuant to registration is then compiled by the CBI,

the agency that maintains the Colorado Sex Offender Registry (Registry). The

Registry is available to state and federal criminal justice agencies, id. at §§ 109, 110,

112, and it includes the offender’s name, registration status, date of birth, and

description of the offender’s unlawful sexual behavior and crimes, id. at § 110(2).

4
These requirements are less restrictive than those in some other states, which limit
where registrants can live and what employment they can seek. See, e.g., ALA. CODE § 15-
20A-11 (prohibition on residence); CAL. PENAL CODE § 290.95 (prohibited from work with
minors); GA. CODE ANN. § 42-1-15(b)–(c) (prohibition on residence and employment); KY.
REV. STAT. ANN. § 17.545 (prohibition on residence), see id. § 17.546 (prohibition on online
or social media interactions with minors); MISS. CODE ANN. § 45-33-24(4a) (prohibition on
residence); OHIO REV. CODE ANN. § 2950.034 (prohibition on residence).
5
 In addition to compiling the Registry itself, CSORA also requires the CBI

make some of the registrants’ information available to the public. Upon request, the

CBI must issue a list of persons on the Registry. Id. at § 110(6)(c). That list must

include, at minimum, the registrant’s name and aliases, address, birth date,

photograph, and the offense that required him or her to register. Id. at § 110(6)(c),

(f). The CBI also maintains a public website searchable by name and geographic

area. Id. at § 111(1). This website does not include information about registrants

whose offenses were misdemeanors, or information about registrants who committed

the triggering offense while they were juveniles. Id. at § 111(1)(a)–(d). However,

information about those registrants is available via the Registry list, which as

explained above, any person could obtain upon request to the CBI. Id. at § 110(6)(c).

Since the creation of the Registry, private, third-party businesses have emerged that

republish registrants’ personal information on the internet with no limitation or

regulation on republication.

Some registered sex offenders can petition the court to discontinue registration

under certain conditions, see id. at § 113(1), while certain categories of sex offenders

are ineligible for deregistration and must continue to abide by CSORA’s registration

requirements for the rest of their lives, see id. at § 113(3). Whether a sex offender is

eligible for removal from the Registry depends on the underlying offense.5

5
A registrant who committed a class 1, 2, or 3 felony can petition to deregister
twenty years after discharge from incarceration or final release from the jurisdiction of the
court, id. at § 113(1)(a), and for lower-level felonies, the registrant may petition for
6
 B. The Appellees

Millard, Knight, and Vega are convicted sex-offenders subject to CSORA’s

registration requirements.6 Together, they brought suit pursuant to 42 U.S.C. § 1983,

arguing that CSORA’s registration requirements constitute cruel and unusual

punishment under the Eighth Amendment; violate their Fourteenth Amendment right

to privacy; and, in the case of juvenile-offenders like Vega, violate their right to Due

Process under the Fourteenth Amendment. Each alleges that registration has been

onerous, making it harder to hold a job, find housing, raise his children, or pass a

criminal background check. Millard contends that he had to move to a different work

location because of his sex-offender status, and that he was forced to move—and had

to file hundreds of applications before finally finding a new residence—because of a

TV news story focusing on sex offenders in apartment housing, and that he incurred

shame from the broad dissemination of his information and loud visits from police.

Knight allegedly has experienced shame due to private businesses republishing the

deregistration ten years after discharge or release. Id. at § 113(1)(b). Those who were
convicted of their offenses as juveniles can also petition for deregistration. Id.
6
Millard is required to register quarterly for the rest of his life. COLO. REV. STAT.
§ 16-22-113(3)(b)(I). The district court incorrectly stated that Millard would become
eligible to petition for deregistration in 2017. Millard v. Rankin, 265 F. Supp 3d 1211, 1217
(D. Colo. 2017). Millard was accused of forcible sexual assault by his daughter and was
convicted pursuant to the then-existing sexual assault provision, see COLO. REV. STAT. § 18-
3-403 (1999), which according to CSORA, makes him ineligible for deregistration for the
rest of his natural life. See COLO. REV. STAT. § 16-22-113(3)(b)(I) (“The following persons
are not eligible for relief . . . any person who is convicted as an adult of . . . sexual assault in
the second degree, in violation of section 18-3-403, as it existed prior to July 1, 2000.”).
Knight is eligible to petition for deregistration in 2021. Id. at § 113(1)(b). And
Vega was eligible for deregistration at the time he completed his juvenile sentence. See id.
at § 113(1)(e). He has since twice petitioned for deregistration but was denied both times
by the state court. These denials form the basis of his procedural due process claim.
7
registry, is no longer able to enter his children’s school, and was denied employment

at Home Depot after his background check was “red flagged.” Vega, who committed

his underlying offense as a juvenile, contends that his placement on the registry

prevents him from finding secure employment, and that the state court violated

procedural due process when denying his petitions for deregistration.

C. The District Court Order

Following a bench trial, the district court concluded that CSORA (1)

constituted cruel and unusual punishment7 in violation of the Eighth Amendment as

applied to Appellees, Millard v. Rankin, 265 F. Supp 3d 1211, 1231–32 (D. Colo.

2017), (2) violated the Appellees’ substantive due process rights, id. at 1235; and (3)

violated—through the state-court’s misapplication of the law when denying Vega’s

petition to deregister—Vega’s procedural due process rights, id. at 1233. The court

granted declaratory judgment to Appellees.8

II. STANDARD OF REVIEW

On appeal from a bench trial, “we review the district court’s factual findings

for clear error and its legal conclusions de novo.” Keys Youth Servs., Inc. v. City of

Olathe, KS, 248 F.3d 1267, 1274 (10th Cir. 2001). In addition, as Appellees have

7
The district court concluded “the experience of these plaintiffs . . . [shows] the
effect of publication of the information required by registration is to expose the registrants
to punishments inflicted not by the state but by their fellow citizens.” Millard, 265 F. Supp
3d at 1226.
8
Although Appellees requested a permanent injunction against enforcement of
CSORA, the district court found that Millard, Knight, and Vega had not submitted any
evidence to establish the requisite factors other than success on the merits. Accordingly, the
district court granted only declaratory relief.
8
made an as-applied challenge to CSORA, we are limited to analyzing the contours of

their claims “under the particular circumstances” of Millard, Knight, and Vega.9 See

United States v. Carel, 668 F.3d 1211, 1217 (10th Cir. 2011) (quotation marks and

citation omitted).

III. ANALYSIS

A. Eighth Amendment

A deprivation cannot violate the Eighth Amendment’s prohibition against

“cruel and unusual punishment” unless it first qualifies as “punishment.” See Carney

v. Okla. Dept. of Public Safety, 875 F.3d 1347, 1352 (10th Cir. 2017). Whether a law

equates to “punishment” depends on whether the legislature’s intent was to punish;

and if not, whether there is the “clearest proof” that any punitive effects of the law

negate the legislature’s civil intent. Smith, 538 U.S. at 92. This court has twice, and

the Supreme Court has once, determined that sex-offender registration requirements

were not “punishments” because their respective legislatures lacked punitive intent

and their application lacked punitive effect. Id. at 96, 105 (finding the Alaska Sex

Offender Registration Act nonpunitive); Shaw v. Patton, 823 F.3d 556, 562, 577

(10th Cir. 2016) (finding the application of Oklahoma’s sex-offender reporting and

residency requirements nonpunitive); Femedeer v. Haun, 227 F.3d 1244, 1249, 1253

(10th Cir. 2000) (finding the application of Utah’s sex-offender registration and

9
However, the district court’s use of third-parties’ testimony below does not
rise to the level of clear error, see Keys Youth Serv., 248 F.3d at 1274, because the
district court’s order shows it considered third-party evidence as reinforcement of the
Appellees’ own experiences.
9
notification system, including dissemination of the information on the internet,

nonpunitive). Evaluating the Colorado legislature’s intent and comparing CSORA’s

effects to those deemed nonpunitive by binding precedent in Smith, Shaw, and

Femedeer, we conclude that CSORA’s registration requirements as applied to

Appellees do not amount to punishment.

1. Legislative Intent

The Colorado General Assembly did not intend for CSORA to inflict a

“punishment.” The legislature expressly indicated through the statutory text that

CSORA was not intended to “be used to inflict retribution or additional punishment

on any person,” but was rather intended to address “the public’s need to adequately

protect themselves and their children” from those with prior sexual convictions.

COLO. REV. STAT. § 16-22-110(6)(a); see also id. § 112(1). We therefore conclude

that the Colorado legislature’s intent behind the registration requirements was civil,

and not punitive. See Smith, 538 U.S. at 93 (finding civil intent behind Alaska’s sex-

offense registration requirements where the “statutory text itself” noted that the

primary goal of the law was to “protect[] the public from sex offenders”).

2. Effects

Past precedent shows that CSORA’s effects on Appellees are not punitive

enough to negate the legislature’s civil intent. To determine the punitive nature of

CSORA’s effects, we consider five factors used in Kennedy v. Mendoza-Martinez,

372 U.S. 144, 168 (1963), whether the scheme: resembles traditional forms of

punishment, imposes an affirmative disability or restraint, promotes the traditional

10
aims of punishment, has a rational connection to a nonpunitive purpose, or is

excessive with respect to this purpose. Smith, 538 U.S. at 97; Shaw, 823 F.3d at 562;

Femedeer, 227 F.3d at 1249.10 The Courts in Smith, Shaw, and Femedeer determined

that each of the above factors supported the conclusion that sex-offender laws similar

to or more restrictive than CSORA were nonpunitive. As explained below, neither

the district court nor Appellees distinguish their case from our binding precedent in

Smith, Shaw, and Femedeer in any meaningful way with regard to any of the

Mendoza-Martinez factors, leading us to conclude that CSORA’s effects do not

constitute punishment.

a. CSORA does not resemble traditional forms of punishment.

For this factor, we examine whether CSORA’s registration requirements are

“regarded in our history and traditions as a punishment.” Smith, 538 U.S. at 97. The

district court below concluded the requirements imposed by CSORA resembled three

traditional forms of punishment: public shaming, banishment, and parole and

probation. Millard, 265 F. Supp 3d at 1226–27. We disagree.

First, CSORA does not resemble public shaming. The district court based its

finding on the “indignity” that the Appellees suffered from “loud public visits from

the police” and “ubiquitous influence of social media.” Id. at 1226–27. But past

precedent shows that this does not amount to public shaming. The State here is not

10
There are two additional factors in Mendoza-Martinez—whether the sanction has a
scienter requirement, and whether the behavior to which it applies is already a crime. See
372 U.S. at 168. However, as the Smith Court explained, these factors are less relevant to
our analysis. 538 U.S. at 105.
11
putting Appellees on display but is rather disseminating “accurate information about

a criminal record,” which the Smith Court found was a “legitimate governmental

objective,” and not “punishment.” 538 U.S. at 98. Any attendant “public shame” or

“humiliation”—even when magnified by the “reach of the Internet”—is a “collateral

consequence of a valid regulation.” Id. at 99; see also Femedeer, 227 F.3d at 1250

(“Public shaming [and] humiliation . . . involve more than the dissemination of

information.” (quoting E.B. v. Verniero, 119 F.3d 1077, 1099–1100 (3d Cir. 1997)).

Second, CSORA does not resemble banishment. The district court based its

conclusion on the fact that one of the Appellees was forced to move—and had to file

hundreds of applications before finally finding a new residence—“because of a TV

news story focusing on sex offenders in apartment housing.” Millard, 265 F. Supp

3d at 1227. But such obstacles are less onerous than Oklahoma’s residency

restrictions that place an outright ban on sex-offenders “living within 2,000 feet of a

school, playground, park, or child care center,” which this court in Shaw found did

not equate to banishment. 823 F.3d at 559, 568. Moreover, the Appellees’ struggles

here did not stem from affirmative state action—such as the residency restrictions in

Shaw—but instead from third parties and businesses implementing their own

procedures. CSORA mandates the dissemination of information, which does not

constitute “banishment.” Smith, 538 U.S. at 98 (“[B]anishment[] involve[s] more

than the dissemination of information.”); see also Femedeer, 227 F.3d at 1250.

Last, the application of CSORA to the Appellees does not amount to

probation. The district court concluded otherwise, reasoning that CSORA’s

12
requirements for in-person reporting and disclosure of email addresses and chat-

handles provided law enforcement supervisory capabilities akin to probation.

Millard, 265 F. Supp 3d at 1228 (citing COLO. REV. STAT. § 16-22-108(2.5)(a)). But

in Shaw we concluded that in-person reporting does not amount to probation. 823

F.3d at 566. And our reasoning there applies equally to CSORA’s email and chat-

handle disclosure requirements. Any monitoring capability stemming from these

requirements falls short of the “far more active” role law enforcement plays in a

probationer’s life, such as mandating employment, requiring consent before moving

or changing jobs, and forbidding drug and alcohol use. Id. at 564–65. Moreover,

CSORA’s mandates are “regulatory requirements separate from [the] underlying sex-

offense conviction,” whereas “probation historically involve[s] a ‘deferred sentence’

based on the underlying offense.” Id. at 566.

b. CSORA does not impose affirmative disability or restraint.

For this factor, we must assess whether CSORA “imposes an affirmative

disability or restraint.” Smith, 538 U.S. at 97. The district court held that it did

because its in-person reporting requirements and use of the Registry restrained the

Appellees’ “abilities to live, work, accompany their children to school, and otherwise

freely live their lives.” Millard, 265 F. Supp 3d at 1229. We disagree, however,

because we held in Shaw that neither the in-person reporting requirements, nor the

more onerous residency-restrictions, of Oklahoma’s sex-offender laws constituted an

affirmative disability or restraint. Shaw, 823 F.3d at 569, 571. It is true that

Millard’s employer moved him to a different work location and that Home Depot

13
declined to hire Knight because of his background. But we find these effects to be

less harsh than a lifelong bar on work in a particular industry, which the Supreme

Court in Hudson v. United States found did not constitute an affirmative disability or

restraint. 522 U.S. 93, 104 (1997). We therefore find that CSORA has not

affirmatively disabled or restrained the Appellees here.

c. CSORA does not promote the traditional aims of punishment.

For this Mendoza-Martinez factor we assess whether CSORA as applied

promotes traditional aims of punishment. Smith, 538 U.S. at 97. The district court

held that CSORA appears to promote the traditional aims of retribution and

deterrence. Millard, 265 F. Supp 3d at 1229–30. The district court premised this

conclusion on CBI Director Rankin’s testimony that deterrence was one of CSORA’s

purposes, see id., and that CSORA’s requirements are based purely on statutory

offense classifications, not an individual assessment of how likely a registrant is to

reoffend, which implies that CSORA is retributive and deterrent in nature. Id. at

1230.

However, both these determinations run afoul of Smith. First, as the Smith

Court explained, deterrent purpose alone is not enough to render a regulatory scheme

criminal in nature. Smith, 538 U.S. at 102. “Any number of governmental programs

might deter crime without imposing punishment. To hold that the mere presence of a

deterrent purpose renders such sanctions ‘criminal’ would severely undermine the

Government’s ability to engage in effective regulation.” Id. (quotation marks,

alteration, and citations omitted). Second, the Smith Court also rejected the argument

14
that tying the length of the reporting requirement to the nature of the offense, rather

than individual risk, renders the registration obligation retributive. Id. (“The broad

categories, however, and the corresponding length of the reporting requirement, are

reasonably related to the danger of recidivism, and this is consistent with the

regulatory objective.”). We therefore reject the district court’s reasoning and hold

that CSORA’s requirements are consistent with its regulatory objectives.

d. CSORA is rationally related to a nonpunitive purpose.

Here, we evaluate whether CSORA “has a rational connection to a nonpunitive

purpose.” Smith, 538 U.S. at 97. The district court found that CSORA is rationally

connected to Colorado’s “avowed regulatory purpose of public safety.” Millard, 265

F. Supp 3d at 1230. We agree. CSORA requires more serious offenders to register

more often than others. COLO. REV. STAT. § 16-10-108(1)(b), (d). Its requirements

are therefore, like those in Shaw and Smith, “keyed to the seriousness of [the]

underlying sex-offense conviction,” and are thus “consistent with the regulatory

objective of protecting public safety.” Shaw, 823 F.3d at 572 (quotations omitted);

see also Smith, 538 U.S. at 90.

e. CSORA is not excessive in relation to its nonpunitive purpose.

For this last Mendoza-Martinez factor, we assess whether CSORA is

“excessive” in relation to its public safety objective. Smith, 538 U.S. at 97. We

conclude that it is not. Below, the court held that CSORA’s very long registration

requirements and substantial disclosure of personal information, without any

individual risk assessment or opportunity to soften CSORA’s requirements based on

15
evidence of rehabilitation, were excessive in relation to CSORA’s supposed public

safety objective. Millard, 265 F. Supp 3d at 1230.

Again, we reject the district court’s conclusions because they run counter to

governing precedent. In Smith, the Court rejected the court of appeals’ reasoning that

the registration statute was excessive because it (1) applied to all sex offenders

without regard to future dangerousness; and (2) placed no limits on the number of

persons who had access to the information. 538 U.S. at 103. Instead, the Court held

states were permitted to impose even very long reporting requirements based on

categorical judgments about specific crimes, and that states were not required to

evaluate individual risk to avoid a finding that registration acts were excessive in

relation to their regulatory purpose. Id. at 104. Further, if the weekly to quarterly

reporting requirement was not excessive in Shaw, 823 F.3d at 576, then neither is the

less-demanding quarterly to annual requirement here.

In sum, Supreme Court precedent and our governing case law compel us to

reject the district court’s decision. Upon de novo review of the application of the

Mendoza-Martinez factors, we conclude that the Appellees have not presented the

clearest proof of punitive effect, and that therefore CSORA is not punitive as applied

16
to Appellees.11 Accordingly, the Eighth Amendment does not bar its application in

this case.12

B. Substantive Due Process

We now review Appellees’ claims that CSORA violates their substantive due

process rights. The district court found that the application of CSORA violated

substantive due process because it gives the public the power to “arbitrarily,” and

without notice, “inflict punishments beyond those imposed through the courts.”

Millard, 265 F. Supp 3d at 1235. Separately, the Appellees argue that CSORA

offends substantive due process because it creates an “irrebuttable presumption” that

a registered sex offender will reoffend. We disagree with the district court and the

Appellees and find instead that CSORA does not violate substantive due process.

11
We recognize that the Colorado Court of Appeals has split amongst itself on the
question of whether juveniles convicted of multiple sex offenses can be constitutionally
subjected to lifetime registration pursuant to CSORA. Compare People in Interest of
C.M.D., 452 P.3d 133, 136–39 (Colo. App. 2018) (holding that CSORA’s requiring of
juveniles with multiple convictions to register for life does not constitute punishment) with
People in Interest of T.B., --- P.3d ---, No. 16CA1289, 2019 WL 2528764 at *4–*9 (Colo.
App. June 20, 2019) (holding the opposite, and finding that not only does CSORA impose a
punishment but it is cruel and unusual), cert. granted, People in Interest of T.B., No. 19-SC-
690 (Colo. 2020). We conclude the Colorado Supreme Court’s impending decision in T.B.
is inapplicable to the present matter, as none of the Appellees is a juvenile offender with
multiple juvenile sex offenses such that they are subject to lifetime registration. See id.
(limiting cert. question to “[w]hether mandatory lifetime sex-offender registration for
multiple juvenile offenses is facially cruel and unusual punishment under the Eighth
Amendment” (emphasis added)). Millard is subject to lifetime registration, but for an
offense he committed as an adult. And, although Vega was a juvenile offender, he had only
one sex offense conviction (juvenile or otherwise), so he is eligible to petition for
deregistration and is not subject to a lifetime registration requirement.
12
Because we hold that CSORA does not impose “punishment,” we need not analyze
whether its requirements are “cruel and unusual.”
17
 The Supreme Court has held that “the Due Process Clause specially protects . .

. fundamental rights and liberties.” Washington v. Glucksburg, 521 U.S. 702, 720–21

(1997). Laws that violate such rights undergo heightened scrutiny and will be

deemed invalid unless they are narrowly tailored to a compelling state interest. Id. at

721. But if a law does not violate fundamental rights, it need only be rationally

related to a legitimate government interest. Id. at 728.

The Appellees fail to show how CSORA violated their fundamental rights.

They cite no case holding that compliance with a sex-offender registration law

implicates a “deeply rooted” fundamental right. Rather, all courts to have considered

the issue have concluded otherwise. See Litmon v. Harris, 768 F.3d 1237, 1242 (9th

Cir. 2014); Does v. Munoz, 507 F.3d 961, 963–65 (6th Cir. 2007); Doe v. Moore, 410

F.3d 1337, 1345–46 (11th Cir. 2005).

We therefore must determine whether CSORA is rationally related to a

legitimate government interest. CSORA easily passes this test because, as discussed

earlier, there is a rational connection between it and the government’s interest in

public safety.13 Accordingly, we reject the Appellees’ substantive due process

claims.14

13
In the district court’s words, “[t]here is a rational relationship between the
registration requirements and the legislative purpose of giving members of the public the
opportunity to protect themselves and their children from sex offenses.” Millard, 265 F.
Supp 3d at 1235.
14
CSORA’s scheme satisfies rational basis even for Vega, who was a juvenile at the
time of his crimes. CSORA treats juvenile offenses differently from adult offenses, and
Vega has benefitted from those heightened protections. His name does not appear on the
state website, and he was eligible to petition for deregistration at the end of his juvenile
sentence. And, as the State correctly notes, the out-of-state cases Vega cites imposed much
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 The district court concluded that CSORA violates substantive due process

because of the public’s allegedly “arbitrary” infliction of punishment. But this would

not amount to substantive due process even if the public has indeed acted arbitrarily.

The “touchstone of due process is protection of the individual against arbitrary action

of government.” County of Sacramento v. Lewis, 523 U.S. 833, 845 (1998)

(alterations omitted) (emphasis added). And below, the alleged “arbitrariness” with

which the district court took issue related not to government action, but to public

action. Millard, 265 F. Supp 3d at 1235.

We similarly reject the Appellees’ arguments that CSORA’s alleged

“irrebuttable presumption” of re-offense offends substantive due process. The

Appellees do not connect this argument to any recognized fundamental liberty

interest, or otherwise explain why an “irrebuttable presumption” in this context

would be unconstitutional. Their briefing suggests it is per se unconstitutional to

erect an irrebuttable presumption without a certain “adequacy of ‘fit’ between the

classification and the policy that the classification serves.” Aple. Br. at 26 (citing

Michael H. v. Gerald D., 491 U.S. 110, 121 (1989)). But Michael H. explains that

the problem with a “presumption” is not the presumption itself, but whether the

“presumption” implicates a constitutionally-problematic legal classification. Id. at

120–21. The answer to that question, again, depends on the nature of the right at

longer registration requirements on juveniles. See Aple. Br. at 30–31 (discussing Interest of
C.K., 182 A.3d 917, 934–36 (N.J. 2018) (lifetime registration for juveniles); In re J.B., 107
A.3d 1, 14–20 (Pa. 2014) (25 years mandatory registration); In re C.P., 967 N.E.2d 729, 748
(Ohio 2012) (25 years mandatory registration)).
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issue: classifications affecting fundamental rights must be narrowly tailored to a

compelling interest, but other classifications need not be so narrowly tailored. See

Glucksburg, 521 U.S. at 720–21, 728.15 Accordingly, because the Appellees fail to

connect CSORA’s alleged “irrebuttable presumption” of re-offense to a fundamental

right, their argument on this score fails.

C. Procedural Due Process

Vega claims that two Colorado magistrate judges violated procedural due

process when rejecting his petitions to discontinue his registration obligation

because, according to him, the judges misapplied the relevant standard. The district

court below agreed with Vega and declared that “[t]he procedures followed by the

state in considering his petitions did not comport with basic principles of

fundamental fairness.” Millard, 265 F. Supp 3d at 1232. But we vacate this

judgment because the district court lacked jurisdiction under the Rooker-Feldman

doctrine to hear Vega’s claims related to the state-court decisions.

The Rooker-Feldman doctrine precludes lower federal courts from exercising

appellate jurisdiction over state-court judgments. See Rooker v. Fidelity Trust Co.,

263 U.S. 413 (1923); see also Kline v. Biles, 861 F.3d 1177, 1180 (10th Cir. 2017).

A plaintiff cannot circumvent Rooker-Feldman by framing his or her challenge to a

state-court judgment as a due process claim. See Campbell v. City of Spencer, 682

F.3d 1278, 1284 (10th Cir. 2012) (holding Rooker Feldman barred Fifth Amendment

15
And, in fact, in Michael H., the Court upheld the presumption at issue, concluding
there was no “historical tradition” or fundamental right implicated. 491 U.S. at 124.
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due process claim); see also Castro v. Kondaur Capital Corp., 541 F. App’x 833, 837

(10th Cir. 2013) (unpublished) (holding due process claim barred by Rooker-Feldman

when reviewing that claim would impermissibly involve reexamination of the state-

court judgment). Vega’s procedural due process claim is, at its core, that the state

court misapplied CSORA. The district court thus could not have granted relief

without reexamining the state-court judgments, and it therefore lacked jurisdiction to

decide the issue.

IV. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s judgment on the

Eighth Amendment and substantive due process claims and REMAND for further

proceedings consistent with this opinion. Further, we VACATE the district court’s

judgment regarding the procedural due process claim and REMAND with

instructions to dismiss that claim for lack of subject matter jurisdiction.

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