Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Lacy, S.J.1
TERRI HACKLEY MCCABE
v. Record No. 061909 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
September 14, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
Terri Hackley McCabe was convicted in 1997 of a violation
of Code § 18.2-370.1. Because of this conviction, she was
required to register as a sex offender pursuant to the
provisions of former Code § 19.2-298.1 (1995 & Supp. 1997).
In 2001, that Code section was amended reclassifying a
violation of Code § 18.2-370.1 as a "sexually violent offense"
and changing the reregistration requirements. McCabe
initiated this litigation asserting that application of the
changed reregistration requirements to her violated her rights
under the Fourteenth Amendment to the United States
Constitution. For the reasons stated below, we conclude that
requiring McCabe to comply with the altered reregistration
requirements does not violate her substantive due process or
procedural due process rights and that her equal protection
1
Justice Lacy participated in the hearing and decision of
this case prior to the effective date of her retirement on
August 16, 2007.
claim is moot. Therefore, we will affirm the judgment of the
circuit court dismissing her complaint.
FACTS
On December 19, 1997, McCabe pled guilty to taking
indecent liberties with a minor by a person in a custodial or
supervisory relationship in violation of Code § 18.2-370.1.
At the time of McCabe's conviction, former Code § 19.2-298.1
required her to register with the State Police as a "sex
offender" and to reregister annually for a period of 10 years.
Former Code §§ 19.2-298.1, -298.2 (1995 & Supp. 1997).
In 2001, the General Assembly amended former Code § 19.2-
298.1 and reclassified a violation of Code § 18.2-370.1 as a
"sexually violent offense." 2001 Acts ch. 840. Because
McCabe had been convicted of an offense that the amendment
defined as a "sexually violent offense," she was required to
reregister as a sex offender every 90 days for the rest of her
life. Former Code §§ 19.2-298.1 (2000 & Supp. 2001), -298.2
(2000).2
2
In 2003, the General Assembly repealed the existing sex
offender registration requirements, including Code §§ 19.2-
298.1 and –298.2, and replaced them with the Sex Offender and
Crimes Against Minors Registry Act (the Act), Code § 9.1-900
et seq. 2003 Acts ch. 584. Former Code §§ 19.2-298.1 and –
298.2 were recodified in Code §§ 9.1-902 and -908. The Act
has been subsequently amended. References to sections of the
Act are to the current provisions unless otherwise stated.
2
In January 2006, McCabe filed a complaint in the Circuit
Court of Fairfax County asserting that she should not be
classified as a "violent sex offender" for purposes of the
reregistration requirements. McCabe argued that the
reclassification of her offense violated her substantive due
process, procedural due process, and equal protection rights
under the United States Constitution. The Commonwealth filed
a demurrer asserting that McCabe failed to state a cause of
action because the reclassification did not interfere with any
liberty interest or fundamental right, did not violate any due
process or equal protection rights, and the legislation was
rationally related to legitimate state interests. The circuit
court granted the Commonwealth's demurrer and entered an order
dismissing the complaint.
We awarded McCabe an appeal on five assignments of error
which collectively raise the same arguments made in the
circuit court: that the legislation reclassifying her
criminal conviction as a "sexually violent offense" and
requiring her to register quarterly as a sex offender for life
rather than annually for the ten-year period imposed under the
prior statute, violated her substantive and procedural due
process rights and her right to equal protection granted under
the Constitution of the United States.
3
DISCUSSION
1. Substantive Due Process
McCabe contends that the statutory reclassification of a
violation of Code § 18.2-370.1 affected two of her fundamental
constitutional rights. First, she claims that the "compelled
personal appearance of registrants constitutes a deprivation
of [her] liberty interest." Second, she asserts that she has
a fundamental right to rely on the statutory registration
scheme in existence at the time of her guilty plea, which
required only annual registration for a ten-year period.
The principles applicable to claims asserting a denial of
substantive due process rights are well established. First,
the claimant must clearly describe and establish that the
interest asserted is a fundamental right or liberty interest
specially protected under the Due Process Clause. Washington
v. Glucksberg, 521 U.S. 702, 721 (1997). To qualify for that
designation, the right asserted must be a right "deeply rooted
in this Nation's history and tradition" or " 'implicit in the
concept of ordered liberty,' such that 'neither liberty nor
justice would exist if [it was] sacrificed.' " Id. (citations
omitted). Legislation interfering with a fundamental right or
liberty interest survives constitutional scrutiny only if it
is narrowly tailored to serve a compelling state interest.
Id. (citing Reno v. Flores, 507 U.S. 292, 302 (1993)). If the
4
asserted right is not a fundamental right or liberty interest
specially protected by the Due Process Clause, the legislation
will survive constitutional scrutiny if it is rationally
related to a legitimate governmental interest. Id. at 728
(citing Heller v. Doe, 509 U.S. 312, 319-20 (1993)); Flores,
507 U.S. at 305; Walton v. Commonwealth, 255 Va. 422, 427-28,
497 S.E.2d 869, 872-73 (1998).
As support for her contention that compelled in-person
quarterly registration violates her protected liberty
interest, McCabe cites Weems v. United States, 217 U.S. 349
(1910). Weems involved a Philippine law that subjected the
criminal defendant to post-release government surveillance
including compliance with the "rules of inspection" and
required permission from the authorities prior to a change of
domicile. Id. at 364. The Supreme Court held that the
criminal sentence was cruel and unusual punishment in
violation of the Eighth Amendment to the United States
Constitution. Id. at 365. From this holding, McCabe derives
the principle that "compelled personal appearance by a
registrant before law enforcement personnel . . . is
constitutionally defective when incorporated into a criminal
sentence," and argues that the same rationale should be
applied to the civil registration provisions at issue in this
case.
5
We first note that nothing in the statute or regulations
suggests that a personal appearance is required for the
periodic reregistration. In-person registration is
specifically required for the initial registration and changes
in residence, name, owned vehicle registration, and
employment. See Code §§ 9.1-903. The regulations enacted
pursuant to the statute specifically provide a mailing address
for the submission of registration and reregistration forms.
See 19 VAC § 30-170-15. Code § 9.1-904(A) defines
reregistration as meaning that "the person has notified the
State Police" and confirmed certain information. (Emphasis
added). Therefore, the imposition upon McCabe's claimed
liberty interest cannot be defined as an in-person
registration requirement. Furthermore, although McCabe
asserts that she is now required to reregister in person every
90 days, Code § 9.1-909(A) allows her to file a petition for
relief from the 90-day reregistration requirement.3
Accordingly, in considering McCabe's claimed liberty
interest, we limit our consideration to whether a lifetime
quarterly reregistration requirement, which can be reduced to
an annual reregistration requirement, violates McCabe's
3
Code § 9.1-909(A) allows such petitions to be filed
three years after the duty to register was imposed.
6
substantive due process rights. This is a question of first
impression in this Court.
The Virginia sex offender registration legislation is
similar to legislation enacted by all other states in response
to the Jacob Wetterling Crimes Against Children & Sexually
Violent Offender Registration Program, 42 U.S.C. § 14071,
enacted by Congress in 1994. Smith v. Doe, 538 U.S. 84, 89-90
(2003).4 The Supreme Court of the United States has not yet
considered any case in which a violation involving substantive
due process rights has been raised. See Connecticut Dep't of
Pub. Safety v. Doe, 538 U.S. 1, 8 (2003) (no opinion expressed
because issue of substantive due process not properly before
court). Substantive due process claims have been raised in
other states and federal courts, but we have found only one
case in which the fundamental right or liberty interest
asserted was similar to that raised by McCabe here.5 In Doe v.
Tandeske, 361 F.3d 594 (9th Cir.), cert. denied, 543 U.S. 817
4
The federal legislation contained guidelines for state
programs requiring persons convicted of certain sexual
offenses to register with state law enforcement officials.
Failure to timely enact appropriate programs subjected the
states to the loss of certain federal funding. 42 U.S.C.
§ 14071(g)(2)(A) (2000 & Supp. IV 2004).
5
Substantive due process claims based on a liberty
interest in non-disclosure of personal information because of
its impact on employment, reputation, or family relationships
have been rejected. See e.g., Doe v. Moore, 410 F.3d 1337,
1344-46 (11th Cir. 2005); Cutshall v. Sundquist, 193 F.3d 466,
479-81 (6th Cir. 1999).
7
(2004), the court rejected the offender's claim that the
Alaska sex offender registration requirements violated his
right to substantive due process by infringing on fundamental
interests of life, liberty, and property. Applying Washington
v. Glucksberg, 521 U.S. 702 (1997), the court concluded that
"persons who have been convicted of serious sex offenses do
not have a fundamental right to be free from the registration
and notification requirements set forth in the Alaska
statute." Tandeske, 361 F.3d at 597. The court then applied
the rational basis test and held that the Supreme Court's
determination in Smith v. Doe, that the Alaska statute served
a " 'legitimate nonpunitive purpose,' " and that the
categories of crimes and " 'corresponding length of the
reporting requirement' " were " 'reasonably related to the
danger of recidivism' " and were " 'consistent with the
regulatory objective,' " compelled the conclusion that the
reporting requirement was valid, although the petitioners did
"possess liberty interests that are indeed important."
Tandeske, 361 F.3d at 597 (quoting Smith, 538 U.S. at 102-03).
Like the court in Tandeske, we find no history or
tradition in our jurisprudence elevating a convicted felon's
right to be free from post-incarceration registration to a
fundamental or specially protected due process right. To the
contrary, we have recognized that liberty rights of convicted
8
felons may be curtailed more than those of the general
populace. See e.g., Johnson v. Commonwealth, 259 Va. 654,
672-73, 529 S.E.2d 769, 779-80 (2000) (procuring blood sample
for DNA analysis from convicted felon does not violate
Constitution); see also Va. Const. Art. II, § 1 ("No person
who has been convicted of a felony shall be qualified to vote
unless his civil rights have been restored by the Governor or
other appropriate authority."); Code § 18.2-308.2
(criminalizing possession or transportation of weapons by
convicted felons). Therefore, we hold that McCabe's right to
be free from lifetime quarterly reregistration as a sex
offender does not qualify as a liberty interest specially
protected by the Due Process Clause for purposes of a
substantive due process claim.
McCabe also asserts a protected fundamental right to rely
on the statutory scheme in existence at the time of her guilty
plea and conviction which she claims afforded her an "absolute
right to liberty after the period of 10 years re-registration,
absent subsequent violation." In support of this right,
McCabe cites language in Wilkinson v. Austin, 545 U.S. 209
(2005), in which the United States Supreme Court stated, "A
liberty interest may arise from the Constitution itself, by
reason of guarantees implicit in the word 'liberty,' or it may
arise from an expectation or interest created by state laws or
9
policies." Id. at 221 (citations omitted). McCabe argues
that as a result of the 2001 amendment, "her liberty has now
been completely curtailed by the retroactive reclassification
of the offense."
McCabe's reliance on Wilkinson is misplaced. Wilkinson
involved an Ohio inmate's procedural due process challenge to
the procedures used in assigning inmates to "supermax" prison
facilities. Id. at 213. The Supreme Court explained that the
"question of what process is due [arises] only if the inmates
establish a constitutionally protected liberty interest" and
then went on to explain that a liberty interest invoking
procedural due process protections could "arise from an
expectation or interest created by state laws or policies."
Id. at 221. The Supreme Court did not hold that state laws or
policies could form the basis of a fundamental right or
liberty interest invoking substantive due process protections,
as asserted by McCabe.
McCabe posits no other basis for her claim that her
statutorily-based expectation of only a ten year
reregistration requirement is a fundamental right.6 Our review
6
McCabe does not claim that the application of the new
registration requirements violated constitutional protections
against ex post facto laws. See Kitze v. Commonwealth, 23 Va.
App. 213, 220, 475 S.E.2d 830, 834 (1996) (holding sex
offender registration requirement does not violate
constitutional prohibitions against ex post facto laws).
10
failed to reveal any recognized fundamental right to rely on
the civil legislative scheme in existence at the time of
McCabe's guilty plea. To the contrary, as a general
proposition, there is no right to rely on the continued
existence of civil statutes. See Allen v. Mottley Constr.
Co., 160 Va. 875, 888, 170 S.E. 412, 417 (1933) (citing
Crawford v. Halsted and Putnam, 61 Va. (20 Gratt.) 211, 220
(1871)) ("Inchoate rights derived under a statute are lost by
a repeal of the statute before they are perfected unless they
are saved by express words in the repealing statute."); see
also Board of Zoning Appeals v. CaseLin Sys., Inc., 256 Va.
206, 210, 501 S.E.2d 397, 400 (1998) ("Generally, landowners
have no property right in anticipated uses of their land since
they have no vested property right in the continuation of the
land's existing zoning status."). McCabe's substantive due
process claim based on this alleged fundamental right fails
because it is not a right "deeply rooted in this Nation's
history and tradition" or " 'implicit in the concept of
ordered liberty,' such that 'neither liberty nor justice would
exist if [it was] sacrificed.' " Glucksberg, 521 U.S. at 720
(citations omitted).
Accordingly, we will affirm the circuit court's holding
that McCabe "failed to demonstrate that the reclassification
affected some fundamental constitutional right." Because
11
McCabe challenged only this holding of the circuit court, we
need not consider the court's holding that the legislation met
the rational basis test for purposes of substantive due
process.
2. Procedural Due Process
McCabe next argues that her "automatic" reclassification
violated her procedural due process rights because the focus
of the Act is to protect the public against repeat sex
offenders and the legislation failed to provide "any
procedures by which a judicial officer could evaluate the
likelihood of future recidivist tendencies of sex offenders
and there were no statutory guidelines which could be the
basis for such a reclassification." McCabe asserts that a
hearing would have enabled her to establish that "she was not
a repeat sex offender and never exhibited any recidivist
tendencies" and therefore should not be classified as a
sexually violent offender.
In Connecticut Department of Public Safety v. Doe, the
United States Supreme Court addressed whether the Connecticut
sexual offender registration statute violated procedural due
process by failing to allow convicted sex offenders a hearing
on current dangerousness before registry information was
disclosed to the public. 538 U.S. at 4. Because the
registration requirement was based solely on the fact of a
12
prior conviction, not a determination of current
dangerousness, the Court concluded that "due process does not
require the opportunity to prove a fact that is not material
to the State's statutory scheme." Id.
Classification of a crime as a "sexually violent offense"
under the Virginia statute is based solely on the nature of
the crime, not on a determination of current dangerousness.
As with the Connecticut sex offender statute, no process is
necessary to prove a fact not material to the classification
determination. Id.
McCabe also argues that the terms of the Act provide that
"[e]very person convicted of a sexually violent offense . . .
shall reregister with the State Police every 90 days from the
date of initial registration," Code § 9.1-904(A) (emphasis
added), and that she was never convicted of a "sexually
violent offense." McCabe argues she was merely convicted of a
"sexual offense" and the General Assembly could not reclassify
her conviction absent procedural due process. This claim is
without merit.
Code § 9.1-902 specifically defines the term "sexually
violent offense" for purposes of the civil registry scheme.
Code § 18.2-370.1 does not incorporate the term "sexually
violent offense," nor did it incorporate any other descriptive
term, such as "sexual offense," before or after 2001. Thus,
13
it is inaccurate for McCabe to claim she was convicted of only
a "sexual offense." She was convicted of a violation of Code
§ 18.2-370.1 and that conviction is the only fact relevant to
the classification determination.
In sum, the change in classification of a prior
conviction in a civil registration scheme does not necessitate
any additional process for McCabe because, as the trial court
properly held, McCabe "failed to allege that a hearing on the
reclassification would have established facts relevant to the
legislature's statutory scheme."
3. Equal Protection
McCabe claims that the reclassification violated the
Equal Protection Clause because she, like others convicted of
a violation of Code § 18.2-370.1 since July 1, 1997, was
required to follow the more stringent reregistration
obligation imposed upon "sexually violent" offenders, while
those convicted of a violation of Code § 18.2-370.1 after July
1, 1994, but prior to July 1, 1997, remained subject to the
requirement of annual reregistration for ten years. McCabe
asserts that there is no rational basis for the distinction
based on the timing of the convictions.
Although not raised by the Commonwealth or the circuit
court, the current statute, Code § 9.1-901(A), provides that
the registration requirements apply to all persons convicted
14
of an offense set out in Code § 9.1-902 "on or after July 1,
1994." Therefore, the registration distinction based on the
timing of the conviction asserted by McCabe does not exist and
her equal protection claim based on such a distinction is
moot.
CONCLUSION
In summary, McCabe's substantive due process claim fails
because she has not established a fundamental right or liberty
interest impacted by the 2001 amendments. McCabe's procedural
due process claim fails because a hearing on the
reclassification of her offense would not have established any
facts relevant to her reclassification, and McCabe's equal
protection claim is moot because no distinction is currently
made between convictions for violations of Code § 18.2-370.1
before and after July 1, 1997.
Accordingly, we will affirm the judgment of the trial
court dismissing McCabe's complaint.
Affirmed.
15