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State v. Druktenis1/30/2004
sex offender case that the same analysis was applicable to both equal protection and substantive due process claims). SORNA establishes an irrebuttable presumption that all persons convicted of the notification-triggering sex offenses pose a significant risk of recidivism, thereby classifying those people for the burden of notification, without providing for an individualized hearing to determine the individual merit of an offender's claim not to be a recidivist. " onstruction of the fourteenth amendment as a guarantee against subjugation dissolves the less enlightening doctrinal rubrics and links cases decided under the equal protection clause with those that vindicate the substantive liberty element of the due process clause." Tribe, supra, § 16-21, at 1517 n.26. While the named thrust of Defendant's attack is that of substantive due process, cases addressing similar issues appear more often to rest on equal protection. See Rotunda & Nowak, supra, § 15.4, at 598; § 17.6, at 82-83; § 18.3, at 224.
We therefore look at both substantive due process and equal protection guarantees, and do not attempt to resolve the issues here "by resort to . . . pigeonhole analysis." M.L.B. v. S.L.J., 519 U.S. 102, 120 (1996) (internal quotation marks and citation omitted); see also Lawrence v. Texas, ___ U.S. ___, 123 S. Ct. 2472, 2477, 2482 (2003) (explaining that Eisenstadt v. Baird, 405 U.S. 438 (1972), which "invalidated a law prohibiting the distribution of contraceptives to unmarried persons[,] . . . was decided under the Equal Protection Clause, but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights" (citation omitted); and, further, stating that " quality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects"); M.L.B., 519 U.S. at 120 (analyzing denial of access to the judicial process as reflecting both due process and equal protection concerns because the " ue process and equal protection principles converge" (internal quotation marks and citation omitted); United States Dep't of Agriculture v. Murry, 413 U.S. 508, 513 (1973) (holding unconstitutional over-inclusive legislation that rested on an "irrebuttable presumption often contrary to fact" thereby "lack critical ingredients of due process"); Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (stating that "the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive").
Finally, as to considerations of both due process and equal protection, classifications of persons can be analyzed to determine compatibility of the law with the substantive constitutional guarantees which are "fundamental . . . to system of government and inherent in the concept of liberty under the due process clause." Rotunda & Nowak, supra, § 18.40, at 794-95. Liberty rights can also "be considered as fundamental rights for the purposes of equal protection analysis." Id. at 795; see also Rotunda & Nowak, supra, § 18.42, at 806 (stating that laws limiting rights considered fundamental for purposes of reviewing classifications under the equal protection clause and rights in the Bill of Rights will be subjected to strict review under the due process and equal protection guarantees).
B. SORNA's Potential Vulnerability--General Observations
In its pursuit to protect New Mexico citizens from further sex offenses by convicted sex offenders, it appears that the Legislature assessed the risk of a repetitive offense, since it determined that "sex offenders pose a significant risk of recidivi
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