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State v. Druktenis1/30/2004
and citation omitted); see also Michael H. v. Gerald D., 491 U.S. 110, 120-21 (1989) (explaining that the illegitimacy of certain legislative irrebuttable presumptions did not rest on procedural due process, but rather on "the adequacy of the `fit' between the classification and the policy that the classification serves," in rejecting the assertion of a procedural due process claim by a putative father to establish his paternity and proceeding with his substantive due process claim); Black v. Snow, 272 F. Supp. 2d 21, 30-31 (D.D.C. 2003) (mem.) (holding, with respect to statute barring felons from possessing firearms based on irrebuttable presumption, that constitutionality of statute would be determined under a substantive due process, rational basis scrutiny standard and not under a procedural due process analysis); In re D.R., 794 N.E.2d 888, 892 (Ill. App. Ct. 2003) (holding that, because notification law was based on conviction and not on dangerousness, procedural due process did not entitle a sex offender to an individualized hearing); Ex Parte Mercado, 2003 WL 1738452, *4 n.11 (Tex. App. 2003) (unpublished) (stating that the Texas sex offender law was "more amenable to a substantive due process review than a procedural one"); State v. Radke, 647 N.W.2d 873, 877 (Wis. Ct. App. 2002) (" ubstantive due process bars, among other things, certain arbitrary government actions, regardless of the fairness of the procedures used to implement them." (citing Foucha v. L ouisiana, 504 U.S. 71, 80 (1992))).
Judge Bustamante's special concurrence expresses a concern about what it considers to be an inconsistency between Connecticut v. Doe's approach and the approach quoted from Thompson, 490 U.S. at 460. His concurrence also suggests that Connecticut v. Doe's approach places into question the continuing vitality of Board of Regents v. Roth, 408 U.S. 564 (1972), and Jenkins v. McKeithen, 395 U.S. 411 (1969). We do not see a basis for concern. The rule in Thompson is that applied in procedural due process, not substantive due process. Roth and Jenkins were procedural due process cases. Connecticut v. Doe rejected procedural due process and thus never got to the rule or approach set out in Thompson. In Connecticut v. Doe, as in the present case, there in fact existed a right that was restricted and that could call for a procedural due process analysis if Defendant claimed that he was entitled to a hearing on whether he was convicted or whether his conviction was one that triggered the registration and notification provisions of SORNA. However, that was not the issue in Connecticut v. Doe and it is not the issue in the present case. The issue Defendant raises does not concern his conviction, but rather his dangerousness, an element that is not material as to whether, as a constitutional matter under SORNA, the registration and notification provisions entitle Defendant to a hearing. Connecticut v. Doe plainly holds that a sex offender statute that requires registration and notification based solely on conviction is not substantively defective in regard to a defendant complaining about lack of a procedure to determine dangerousness. With procedural due process eliminated from consideration, the tests for examining procedural process, such as that stated in Thompson, are not applicable. The question for determination is that of substantive due process.
2. Substantive Due Process
Defendant claims that he has a Due Process Clause liberty interest that was impermissibly restricted and that is protected under substantive due process. He contends that SORNA's constitutional viability under substantive due process depends on the provision for an individualized risk-assessment hearing as to recidivist p
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