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State v. Druktenis1/30/2004
ocess challenges to be examined in two steps: "the first asks whether there exists a liberty or property interest which has been interfered with by the State, the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient." Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989) (citations omitted).
The Supreme Court obviously did not apply this template in Connecticut v. Doe. Read broadly, this failure would call into question the continuing vitality of such venerable cases as Board of Regents v. Roth, 408 U.S. 564, 573 (1972) (holding that failure to renew the employment of a non-tenured public employee, in a manner injurious to his reputation, would constitute deprivation of liberty, thus requiring procedural due process), and Jenkins v. McKeithen, 395 U.S. 411, 424-25, 427-28 (1969) (holding that commission which accusatory undertook function of publicly labeling persons as criminal violators must grant such persons due process protection). Read even more broadly, the Supreme Court's decision could be seen as a wholesale devaluation of the value of process-that is, notice and a meaningful hearing-in our justice system.
Fortunately, Connecticut v. Doe I think can be placed in the scheme of procedural due process law without dismantling it. In Roth, for example, the Court was dealing with actions taken against an individual who could theoretically prove the accusations against him wrong. In that circumstance the hearing would be about something of direct relevance to the harmful statements. In Megan's Law cases such as Connecticut v. Doe, on the other hand, the Court would be dealing with a legislative determination that conviction by itself merits registration and disclosure regardless of the circumstances of any individual. Thus, individual hearings cannot yield relevant information. In this very narrow sense, pure procedural due process can yield no remedy.
Connecticut v. Doe left entirely open the possibility of a substantive due process challenge. I believe that a substantive analysis, probably under New Mexico's Constitution, can lead to a ruling that SORNA must provide for a hearing allowing offenders the opportunity to prove they are not recidivists and will not reoffend.
In reaching this conclusion, I accept and need not embellish on the extraordinarily harsh consequences SORNA can have on sex offenders and, through them, their families. The opinion characterizes the liberty interests affected as important, but not fundamental. Given the United States Supreme Court's caution in recognizing fundamental liberty interests, I suspect the opinion mirrors the likely outcome when it decides the issue. That is why I do not dissent on the issue. In addition, rational review by the Supreme Court will probably lead to the same result we reach here.
I see no reason, however, why the State of New Mexico could not apply an intermediate standard of review under the State Constitution in cases such as this: that is, where the liberty interest is strong and the remedy sought is simply an individual hearing. Adopting a variation of Justice Harlan's approach to substantive review as stated in his dissent in Poe v. Ullman, 367 U.S. 497, 549-55 (1961), would be a useful approach. Unfortunately, Defendant made no argument under our State Constitution.
I predict that a case will present itself in which a showing can be made that applying SORNA will work undue hardship on a person who demonstrably does not present the danger which SORNA seeks to ameliorate. New Mexico courts will have the opportunity to take a fresh look at the problem then.
MICHAEL D. BUSTAMANTE, Judge
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