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State v. Druktenis1/30/2004
roclivity before effectuation of the notification provisions.
Defendant's asserted federally protected constitutional liberty interest stems from the federal Due Process Clause, which states in part: " or shall any State deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Our State counterpart reads in part: "No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws." N.M. Const. art. II, § 18.
Due process of law is a summarized constitutional guarantee of respect for those personal immunities which, as Mr. Justice Cardozo twice wrote for the Court, are "so rooted in the traditions and conscience of our people as to be ranked as fundamental," or are "implicit in the concept of ordered liberty."
Rochin v. California, 342 U.S. 165, 169 (1952) (citations omitted), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 666 (1961) (Black, J., concurring); see also State v. Rotherham, 122 N.M. 246, 259, 923 P.2d 1131, 1144 (1996) (stating, in regard to attack on duration of commitment allowed by statute, "substantive due process prevents the government from engaging in conduct that . . . interferes with rights implicit in the concept of ordered liberty." (alteration in original) (internal quotation marks and citation omitted)).
In examining the constitutionality of a statute for substantive due process, we determine, as a threshold matter, the nature of the private interest at stake. That is, we first analyze whether it is a fundamental right or involves a suspect class, or involves an important right held by a sensitive class. The determination made leads us to an examination of (1) whether the government must prove a compelling and legitimate government interest (strict scrutiny), (2) whether the government must prove a substantial government interest (intermediate scrutiny), or (3) whether the party attacking the constitutionality of the statute must prove lack of a rational basis for the statute. See Marrujo v. N.M. State Highway Transp. Dep't, 118 N.M. 753, 757, 887 P.2d 747, 751 (1994).
3. Substantive Due Process and Equal Protection
Defendant's substantive due process attack implicitly and necessarily includes an equal protection attack. See U.S. Const. amend. XIV, § 1 (" or deny to any person within its jurisdiction the equal protection of the laws."); N.M. Const. art. II, § 18 (" or shall any person be denied equal protection of the laws."). Defendant's theory is basically that SORNA creates an improper classification by failing to classify. That is, the statute creates an arguably over-inclusive classification, see Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 18.2, at 211-12, by failing to "distinguish between persons who, for equal protection purposes, should be regarded as differently situated." Laurence H. Tribe, American Constitutional Law § 16-1, at 1438 (2d ed. 1988). "Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike." Jenness v. Fortson, 403 U.S. 431, 442 (1971); see Tribe, supra, § 16-2, at 1438-39; Raines v. State, 805 So. 2d 999, 1003 (Fla. Dist. Ct. App. 2001) (holding unconstitutional, under the Equal Protection Clause as being over-inclusive, a statute that defined a sex offender as a person convicted of false imprisonment that had no "concomitant sexual component").
The issue here brings substantive due process and equal protection principles and analyses together. See In re Joseph E.G., 623 N.W.2d 137, 142 (Wis. Ct. App. 2000) (stating in
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