State v. Dykes

Justice KITTREDGE.

I concur in result. I commend my learned colleague for her scholarly research, and I agree with the majority’s general proposition that persons have a fundamental right “to be let alone.” But I respectfully disagree that Appellant, as a convicted child sex offender, possesses a right that is fundamental in the constitutional sense. I do not view Appellant’s purported right as fundamental. I would find Appellant possesses a liberty interest entitled to constitutional protection, for all persons most assuredly have a liberty interest to be free from unreasonable governmental interference. I would find that the challenged mandatory lifetime, non-reviewable satellite monitoring provision in section 23-3-540(C) is arbitrary and fails the minimal rational relationship test.11

I.

I begin with the premise that satellite monitoring is predominantly civil. See Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (noting that whether a statute is criminal or civil primarily is a question of statutory construction). Where, as here, the legislature deems a statutory scheme civil, “only the clearest proof’ will transform a civil regulatory scheme into that which imposes a criminal penalty. *373Id. at 92, 123 S.Ct. 1140 (quoting Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)) (internal quotations omitted).

The General Assembly expressly stated its intent:

The intent of this article is to promote the state’s fundamental right to provide for the public health, welfare, and safety of its citizens [by] ... providing] law enforcement with the tools needed in investigating criminal offenses. Statistics show that sex offenders often pose a high risk of reoffending. Additionally, law enforcement’s efforts to protect communities, conduct investigations, and apprehend offenders who commit sex offenses are impaired by the lack of information about these convicted offenders who live within the law enforcement agency’s jurisdiction.

S.C.Code Ann. § 23-3^400 (2007). This Court has examined this language and held “it is clear the General Assembly did not intend to punish sex offenders, but instead intended to protect the public from those sex offenders who may re-offend and to aid law enforcement in solving sex crimes.” State v. Walls, 348 S.C. 26, 31, 558 S.E.2d 524, 526 (2002). Thus, a likelihood of re-offending lies at the core of South Carolina’s statutory scheme.

II.

The United States Supreme Court has cautioned restraint in the recognition of rights deemed to be fundamental in a constitutional sense. Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Courts must “exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of [members of the judiciary].” Id. at 720, 117 S.Ct. 2258. The Due Process Clause protects only “those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition.’ ” Id. at 720-21, 117 S.Ct. 2258 (internal citations omitted). I would not hold that a convicted child sex offender has a fundamental right to be “let alone” that is “deeply rooted in this Nation’s history and tradition.” Given the civil nature of satellite monitoring and the clear authority of the legislature to impose such a *374regulatory scheme, I respectfully reject the suggestion that a convicted child sex offender’s limited liberty interest morphs into a fundamental right when the active sentence comes to an end.

Notwithstanding the absence of a fundamental right, I do believe lifetime imposition of satellite monitoring, with no consideration of likelihood of re-offending, implicates a liberty interest and invokes minimum due process protection.12 See Commonwealth v. Cory, 454 Mass. 559, 911 N.E.2d 187 (2009) (finding satellite monitoring burdens an offender’s liberty interest in two ways, by “its permanent, physical attachment to the offender, and by its continuous surveillance of the offender’s activities”). Thus, courts must “ensure[ ] that legislation which deprives a person of a life, liberty, or property right have, at a minimum, a rational basis, and not be arbitrary. ...” In re Treatment and Care of Luckabaugh, 351 S.C. 122, 139-40, 568 S.E.2d 338, 346 (2002); see also Nebbia v. N.Y., 291 U.S. 502, 525, 54 S.Ct. 505, 78 L.Ed. 940 (1934) (“[T]he guarantee] of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary, or capricious.... ”); Hamilton v. Bd. of Trs. of Oconee County Sch. Dist., 282 S.C. 519, 319 S.E.2d 717 (Ct.App.1984) (holding that, to comport with due process, the legislation must have a rational basis for the deprivation and may not be *375“so inadequate that the judiciary will characterize it as arbitrary”).

Having served her sentence, I believe Appellant possesses a liberty interest that is violated by the mandatory, non-reviewable provisions of section 23-3-540(C). Applying the rational basis test to Appellant’s due process challenge, I would find the mandated lifetime satellite monitoring and absence of any judicial review related to an assessment of an individual’s likelihood of re-offending renders the challenged provision arbitrary. Further, in light of the legislature’s predication of the statutory scheme on the substantial purpose of protecting the public from sex offenders who may re-offend, I would find the lack of risk assessment within section 23-3-540(C) not rationally related to such purpose, and thus unconstitutional. See Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (finding an individual’s liberty interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by clear and convincing proof); Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (upholding sexually violent predator commitment statute and emphasizing the role of the review to ensure commitment lasts only so long as it is necessary to protect the public); see also Lyng v. Int’l Union, 485 U.S. 360, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988) (noting that although allegedly arbitrary legislation invokes the least intrusive rational basis test, that standard of review is “not a toothless one”); Luckabaugh, 351 S.C. at 139-40, 568 S.E.2d at 346 (finding due process ensures that a statute which deprives a person of a liberty interest has “at a minimum, a rational basis, and may not be arbitrary”).

I believe the finding of arbitrariness is additionally supported by the South Carolina Constitution, which, unlike the United States Constitution, has an express privacy provision. See S.C. Const, art. I, § 10 (“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated.... ”). While our constitution’s privacy provision does not transform a purported privacy interest into a fundamental right for purposes of applying the strict scrutiny test, I believe it does inform the analysis of whether a state law is arbitrary and lends addition*376al support to the conclusion that section 23-3-540(0 is unconstitutional. Cf. State v. Weaver, 374 S.C. 313, 649 S.E.2d 479 (2007) (holding that by articulating a specific prohibition against unreasonable invasions of privacy, the people of South Carolina have indicated a higher level of privacy protection than the federal Constitution).

Therefore, I concur in result to reverse and remand.

TOAL, C.J., and PLEICONES, J., concur.

. Following the rape and murder of a nine year-old-girl by a convicted sex offender who lived across the street, Florida passed the Jessica Langford Act in 2005. This Act, referred to as "Jessica's Law,” heightened criminal sentences and post-release monitoring of child sex offenders. Many states, including South Carolina, followed suit in adopting some version of Jessica’s Law. However, South Carolina’s requirement of mandatory lifetime monitoring without review is more severe than the statutory scheme of other jurisdictions. A common approach among other states that have adopted some form of "Jessica’s Law” is to require either a predicate finding of probability to re-offend or provide a judicial review process, which allows for, upon a proper showing, a court order releasing the offender from the satellite monitoring requirements. See generally, N.C. Gen.Stat. Ann. § 14-208.43 (West 2010) (providing a termination procedure one year after the imposition of the satellite based monitoring or a risk assessment for certain offenders). In accordance with the severability clause in South Carolina’s statutory scheme, I concur with the finding of the majority expressed in footnote 7 that the offenses of criminal sexual conduct in the first degree and committing or attempting a lewd act upon a child under sixteen must follow the process as outlined for the balance of child sex related offenses.

. In my opinion, although Appellant posited her main argument in terms of strict scrutiny, Appellant’s presentation of a due process challenge sufficiently permits the Court to consider such claim under the lesser levels of scrutiny. Indeed, Appellant's final brief contains many assertions that fit the rational relationship test, for example:

Substantive due process protects citizens against arbitrary or capricious action by the government regardless of the procedures used to carry out that action____ In this case, appellant’s substantive due process rights were violated because § 23-3-540(C) mandated [the trial judge] arbitrarily and capriciously imposed lifetime GPS monitoring on her. The imposition was arbitrary and capricious.... The substantive component of this right prohibits the state from arbitrarily or capriciously depriving a person of life, liberty, or property regardless of whether or not the way in which the government carries out this deprivation is, itself, ostensibly fair.

The concept of "arbitrary and capricious” lies at the heart of the rational relationship test. Therefore, I would find that the Court may properly consider Appellant’s due process challenge under the rational relationship test.