METER, P.J.

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(1)(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(1)(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(1)(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 N.W.2d 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, non-dangerous 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, 608 N.W.2d 132. This Court has previously considered whether the SORA imposes punishment. In People v. Pennington, 240 Mich.App. 188, 191-192, 610 N.W.2d 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, 610 N.W.2d 608. Pennington adopted the reasoning of Lanni v. Engler, 994 F.Supp. 849 (E.D.Mich.1998), and Doe v. Kelley, 961 F.Supp. 1105 (W.D.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, 610 N.W.2d 608. People v. Golba, 273 Mich.App. 603, 729 N.W.2d 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 penalty or punishment. Id. at 620-621, 729 N.W.2d 916. 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, 729 N.W.2d 916.

This Court has also considered whether the SORA's registration requirements constitute punishment as applied to juveniles. In Ayres, 239 Mich.App. at 21, 608 N.W.2d 132, 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, 608 N.W.2d 132. The respondent challenged this requirement, claiming that it violated the constitutional prohibition against cruel or unusual punishment. Id. at 10, 608 N.W.2d 132. 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, 608 N.W.2d 132. 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, 608 N.W.2d 132, 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, 608 N.W.2d 132. 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, 608 N.W.2d 132. 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, 608 N.W.2d 132.

This Court questioned the holding in Ayres in In re Wentworth, 251 Mich.App. 560, 651 N.W.2d 773 (2002). The juvenile respondent in Wentworth was found responsible for CSC II. Id. at 561, 651 N.W.2d 773. 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, 651 N.W.2d 773. 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, 651 N.W.2d 773.

In People v. Dipiazza, 286 Mich.App. 137, 146, 778 N.W.2d 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, 778 N.W.2d 264.

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, 778 N.W.2d 264. 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, 778 N.W.2d 264. 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, 778 N.W.2d 264. The defendant successfully completed his HYTA program and his case was dismissed, leaving him with no conviction on his record. Id. at 140, 778 N.W.2d 264. 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, 778 N.W.2d 264. 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, 778 N.W.2d 264.

The Court analyzed whether the registration requirements constituted punishment under the facts of that case. Id. at 147, 778 N.W.2d 264. It used the test adopted in Ayres, stating the following: "[D]etermining 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, 778 N.W.2d 264 (quotation marks and citations omitted); see also Ayres, 239 Mich.App. at 14-15, 608 N.W.2d 132. 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 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, 778 N.W.2d 264. 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, 778 N.W.2d 264. 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, 778 N.W.2d 264. The Dipiazza Court recognized that the federal courts, in Kelley, 961 F.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, 778 N.W.2d 264. 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, 778 N.W.2d 264. The Court stated:

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, 778 N.W.2d 264. With regard to this factor, the Dipiazza Court stated:

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, 608 N.W.2d 132, quoting Kelley, 961 F.Supp. at 1110.7 Ayres further noted that the registration requirement does not impose any suffering, restraint, or obligation and stated:

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, 608 N.W.2d 132.

Finally, to determine whether the SORA imposes punishment this Court must consider the effects of the legislation. Dipiazza, 286 Mich.App. at 147, 778 N.W.2d 264. 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, 778 N.W.2d 264 (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, 778 N.W.2d 264. 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, 778 N.W.2d 264.

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, 608 N.W.2d 132, 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, 608 N.W.2d 132, 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 N.W.2d 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 N.W.2d 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 N.W.2d 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, 729 N.W.2d 916 ("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, 629 N.W.2d 402 (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 N.W.2d 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 N.W.2d 348 (2000).

Reversed.

KELLY, J., concurred with METER, P.J.

RONAYNE KRAUSE, J. (concurring).

I concur with the majority because the majority correctly explains that registration under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., is not "punishment" under Michigan law. Therefore, the trial court impermissibly determined that it constituted "cruel and unusual punishment" in this case. I write separately because I believe the trial court expressed very well-founded concerns that merit further discussion.

Obviously, I do not take any exception to the purposes and legitimacy of SORA's registration requirements. Indeed, I expressly approve of it. See People v. Golba, 273 Mich.App. 603, 620, 729 N.W.2d 916 (2007). My concern is with the public nature of the registration here for a respondent who was charged and "convicted" as a juvenile. Michigan has a public policy, as reflected in our history and our statutes, of protecting juveniles and treating them specially, even when finding them responsible for reprehensible acts. Courts may (and in some cases must) waive jurisdiction and, as a result, minors may be prosecuted as adults. See People v. Conat, 238 Mich.App. 134, 139-143, 605 N.W.2d 49 (1999). However, unless a waiver occurs, "our justice system [distinguishes] between juvenile delinquency and adult criminal conduct." In re Wentworth, 251 Mich.App. 560, 568, 651 N.W.2d 773 (2002).

"Evidence regarding the disposition of a juvenile under [chapter XIIA of the Probate Code] and evidence obtained in a dispositional proceeding under [chapter XIIA of the Probate Code] shall not be used against that juvenile for any purpose in any judicial proceeding except in a subsequent case against that juvenile under [chapter XIIA of the Probate Code]." MCL 712A.23.1 The purpose of this statute is to protect minors from the public being aware of immature mistakes.2 People v. Smallwood, 306 Mich. 49, 53, 10 N.W.2d 303 (1943); Wentworth, 251 Mich.App. at 568, 651 N.W.2d 773. The goal of rules sealing or expunging juvenile records "is to prevent a juvenile record from becoming an obstacle to educational, social, or employment opportunities." People v. Smith, 437 Mich. 293, 303, 470 N.W.2d 70 (1991) (opinion by LEVIN, J.). Indeed, "the paramount purpose of the juvenile section of the Probate Code is to provide for the well-being of children." In re Macomber, 436 Mich. 386, 390, 461 N.W.2d 671 (1990). In fact, proceedings against juveniles are not even considered criminal proceedings. Wentworth, 251 Mich.App. at 568, 651 N.W.2d 773.

Registration cannot violate the prohibition against cruel or unusual punishment unless it is, in fact, "punishment." In re Ayres, 239 Mich.App. 8, 14, 608 N.W.2d 132 (1999). While I agree with the majority that Ayres remains valid and binding law, I think it is a closer question than does the majority, because at the time of the trial in Ayres, the registration database was only available to the public during normal business hours through law enforcement authorities, and information about registrants who had been juvenile offenders was not available to the public at all. See Ayres, 239 Mich.App. at 12, 18-19, 608 N.W.2d 132. Although the Ayres Court did adopt the analyses of federal courts holding that sex offender registration and notification was not cruel and unusual punishment, the Court further stated that

In fact, the Ayres Court deemed highly important to its conclusion that registration was not constitutional "punishment" the "fact that public access to registration data regarding juveniles is foreclosed...." Id. at 19, 608 N.W.2d 132. But in September 1999, SORA was amended to create a public, Internet-accessible registry available to anyone, and that registry includes juvenile offenders. People v. Dipiazza, 286 Mich.App. 137, 142-143, 146-147, 778 N.W.2d 264 (2009). I believe that the majority does not give enough weight to the burden that public registration places on registrants. See id. at 152-153, 778 N.W.2d 264.3

However, the mere fact that a state action is onerous does not, by itself, make that action a "punishment." As I have said, the purpose of SORA is noble and simply cannot be carried out without burdening some individuals. "Unfortunately the scheme has never yet been devised by human invention by which the power to do great good has not been mingled with the power to do some evil." People v. Gallagher, 4 Mich. 244, 255 (1856). The purpose of SORA is to protect the public and help people to protect themselves from predators, thereby reducing recidivism, empowering people, promoting safety in general, and preventing one of the more horrific kinds of crime in particular. It does not purport to have any rehabilitative value for registrants, but at the same time, any harm to registrants is simply incidental. I do not believe we should therefore pretend that no such harm transpires, but the critical problem is simply that registering people who are demonstrably not dangerous makes it more difficult conceptually to regard SORA as the nonpunishment tool it should be.

This is thrown into sharp relief here, where the burdens of registering run directly contrary to the purposes of our laws regarding juveniles. Even further, when there is good reason to find that the registrant is not a predator and is highly unlikely to be a sexual offender again in the future, requiring his or her registration actually undermines the important purpose underlying SORA. It would encourage members of the public to demonize and fear a person who is, it seems, at least no more dangerous than any other member of the public.4 Simultaneously, it would encourage members of the public to trivialize the predators who really are dangerous. Compelling registration of individuals who can with some degree of reliability be determined not to be threats thereby reduces SORA — at least to some extent — from a tool that empowers people and communities to help protect themselves to a pointlessly life-destroying piece of "security theater."5 Divesting the trial court of the power to relieve persons such as TD from the requirement of registration makes the world less safe for all of us.

Nevertheless, this is a policy decision. I believe very strongly that SORA is a vital and powerful tool. I am concerned that its efficacy is drastically impaired by the registration of people known to not be likely predators and of juvenile offenders who were not deemed sufficiently dangerous to warrant even an attempt to have them waived to adult court; the latter undermines the purposes of our juvenile justice system, as well. I strongly urge our Legislature to consider giving our trial courts the means to enhance SORA by exercising discretion to remove from the registry or decline to register people who can be shown to be not dangerous. But I cannot agree with the trial court that TD's registration here constitutes cruel and unusual punishment; it is simply unwise.