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State v. Druktenis1/30/2004
d by this Court. Id. 5-7, 16-21. In the context of these determinations, the State argued on appeal that the Legislature's finding that sex offenders pose a significant risk of recidivism was a finding to which the district court must defer, forbidding the district court to grant the defendant a conditional discharge. Id. 22. Also, within the same context, this Court stated that:
A reading of [SORA] indicates that the legislature knew that there would be persons having committed sex offenses who would not be required to register under [SORA]. The statute is prospective in application in that it only applies to those convicted after July 1, 1995. It is therefore clear that the legislature did not intend for every person who has committed a sex offense to be required to register as a sex offender.
Id. Defendant in the present case wants to take this statement out of its context--the context being persons who commit sex offenses but who are not considered as having been "convicted" (because they receive a conditional discharge) under SORA--to argue that the Legislature knew some sex offenders would not have to register because they could show they were not recidivists. The contextual gap is too great to bridge. In the context of the issues and arguments in Herbstman, this statement does not lead to or support a conclusion that Defendant has a substantive liberty right and a right to an individualized risk-assessment hearing. This was not an issue in Herbstman. Herbstman did not analyze the issue. It does not apply.
C. Substantive Right and Restriction of the Right
Defendant claims a liberty interest through both protected privacy and protected reputation interests. " he phrase `liberty interest' as used in the context of the Due Process Clause has not been fully delineated." E.B. v. Verniero, 119 F.3d 1077, 1106 n.27 (1997).
1. Privacy Interest
There is no "general constitutional `right to privacy.'" Whalen, 429 U.S. at 607-08 (Stewart, J., concurring) (citation omitted). It is a "concept [that] still remains largely undefined." Id. at 599 n.24. In Whalen, the United States Supreme Court described privacy as involving "at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions." 429 U.S. at 598-600. The former interest has been characterized in federal circuit courts as the "confidentiality" strand of the right, and the latter interest as the "autonomy" strand of the right. See, e.g., Shields v. Burge, 874 F.2d 1201, 1209, 1210 (7th Cir. 1989).
The confidentiality aspect of the privacy interest has been spliced in the federal circuit courts into "the right to be free from the government disclosing private facts about its citizens and from the government inquiring into matters in which it does not have a legitimate and proper concern." ACLU v. Mississippi, 911 F.2d 1066, 1069-70 (5th Cir. 1990) (emphasis omitted) (quoting Ramie v. City of Hedwig Vill., 765 F.2d 490, 492 (5th Cir. 1985)); Poritz, 662 A.2d at 406. " he existence of a right to privacy in personal information" appears to be "relatively well-established." Paul P. v. Farmer, 92 F. Supp. 2d 410, 415 (D. N.J. 2000). However, "the boundaries of that right are less clear." Id. The United States Supreme Court has not addressed the question of the propriety of government collection and public dissemination of private information in terms of a constitutional privacy right. Rotunda & Nowak, supra, ยง 18.30, at 662. Whalen went only as far as to say that the duty to avoid unwarranted disclosure of information collected
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