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State v. Druktenis1/30/2004
mployment opportunities.
We conclude that the continuing, long-term government compilation and dissemination of one's current residence and current place of employment, under certain circumstances, can amount to a restriction of constitutionally protectable privacy and reputation interests and therefore an aspect of liberty under the United States and New Mexico Constitutions. As we have already stated in this opinion, the State has a legitimate and compelling reason to employ these informational safeguards to fulfill the State's duty to protect society from convicted sex offenders who pose a significant risk of recidivism. Such regulatory action is not arbitrary, oppressive, or unreasonable.
These conclusions, however, do not end the inquiry. The issue still remains whether the notification provisions pass constitutional scrutiny even if an offender convicted of a notification-triggering sex offense can produce persuasive evidence showing that the offender does not pose a significant risk of recidivism and is not a current danger to society. In that limited context, we turn to the standards of scrutiny that we give statutes that must pass through liberty interest due process and equal protection examination. For, no matter what arguments for or against restriction of individual liberty can be made, our analyses are circumscribed by the methods of constitutional scrutiny we are required to employ. In turn, the methods of constitutional scrutiny must be employed within the factual context of the nature of the private interest and the nature of the government interest.
One of three standards of scrutiny is applicable. Trujillo III, 1998-NMSC-031, 14, 125 N.M. 721, 965 P.2d 305 (stating the three standards to be strict, intermediate, and rational basis). Which standard is employed depends in part on the character of the interest to be protected. "The extent to which the Court's scrutiny is heightened depends both on the nature of the interest and the degree to which it is infringed." Tribe, supra, ยง 16-33, at 1610; see also M.L.B. v. S.L.J., 519 U.S. 102, 120 (1996) (stating that the Court looks at the "intensity of the individual interest at stake," in considering the stake of a parent in the forced dissolution of her parental rights). The private interest at stake must be a fundamental one, or an important one, if scrutiny above rational basis scrutiny is to be employed.
The focus here then becomes what type of constitutional scrutiny we are to invoke to test the State's justification for intrusion assuming the convicted offender can present evidence showing no potential for recidivism or dangerousness. For in the standards of scrutiny are found the tests by which we examine how restrictive the State can be in placing burdens on interests having some level of protection under the due process and equal protection guarantees.
D. Constitutional Scrutiny
Our Supreme Court wrestled with constitutional scrutiny in damages cap cases. See Trujillo III, 1998-NMSC-031, 14; Trujillo v. City of Albuquerque, 110 N.M. 621, 798 P.2d 571 (1990) [hereinafter Trujillo I]; Richardson v. Carnegie Library Rest., Inc., 107 N.M. 688, 763 P.2d 1153 (1988). The match concluded with Trujillo III settling on and defining the three standards of scrutiny. Trujillo III, 1998-NMSC-031, 14-16. We apply these standards " n evaluating a due process or equal protection claim under the Federal or State onstitutions." Marrujo v. N.M. State Highway Transp. Dep't, 118 N.M. 753, 757, 887 P.2d 747, 751 (1994).
1. Strict Scrutiny Is Not Required
We employ strict scrutiny if a liberty interest exists which rises to the level of a fundam
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