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State v. Druktenis1/30/2004
endant has not sustained his burden under rational basis scrutiny to constitutionally invalidate the notification provisions. Under the constraints of the scrutiny analyses we are required to employ, the SORNA notification provisions remain constitutional burdens on Defendant's rights.
We are not without some concern regarding the harsh effects of notification on a convicted sex offender who can muster proof that he is not a likely recidivist and not a danger to society. However, once our scrutiny drops to rational basis scrutiny, we think it appropriate in the specific context of the notification-triggering crimes and the specific notification provisions in SORNA to defer to the Legislature's view of what is required to protect society from persons convicted of the specific notification-triggering sex offenses. See Marrujo, 118 N.M. at 758, 887 P.2d at 752 (stating that, " nderlying [the rational basis] standard is the traditional deference accorded by courts to the legislature's sense of `the general good'" (internal quotation marks and citation omitted)).
While our Legislature might have adopted a more discriminating scheme that would allow the attempted winnowing out of likely non-recidivists, we will not "sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976).
Nor are we without some concern about the length of the period of notification. No doubt for some offenders, twenty years of difficulty in obtaining a desired livelihood, likely in addition to a prison sentence and parole, could be less a safety device than a device to keep a person close to the welfare rolls and to delay the offender's rehabilitation as a productive member of society. Perhaps at some early or mid-point an individualized hearing on recidivist tendencies might be a wiser course for society and a fairer consequence for an offender.
Finally, in the present case, we have determined that the carefully chosen notification-triggering sex offenses pass rational basis scrutiny. However, nothing in this opinion is meant to suggest that government dissemination to the public of an individual's personal, private, and confidential information regarding convicted criminals cannot under certain circumstances be subject to successful constitutional attack.
VI. The Claim of Violation of the Contract Impairment Clause
In his reply brief only, Defendant asserts that application of the SORNA requirements violates the Contract Impairment Clauses of the United States and the New Mexico Constitutions, in that registration violates the terms of his binding plea agreement. See U.S. Const. art. I, § 10 ("No State shall . . . pass any . . . Law impairing the Obligation of Contracts."); N.M. Const. art. II, § 19 ("No . . . law impairing the obligation of contracts shall be enacted by the legislature."). Based on his impaired contract contentions, Defendant seeks specific performance of the plea agreement.
Defendant's Contract Impairment Clause contentions are raised for the first time on appeal, and, on appeal, they were raised for the first time in his reply brief. We will not consider issues raised for the first time in an appellant's reply brief. See State v. Fairweather, 116 N.M. 456, 463, 863 P.2d 1077, 1084 (1993); Hale v. Basin Motor Co., 110 N.M. 314, 321, 795 P.2d 1006, 1013 (1990); see also Rule 12-213(C) NMRA 2003 (requiring reply brief to be "directed only to new arguments or authorities presented in the answer brief"). Nor, generally, will we address issues not preserve
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