(specially concurring).
{126} I concur in the opinion’s resolution of Defendant’s Ex Post Facto Clause theory and its analyses under Article IV, Section 34 of our State’s Constitution. I also agree with the decision not to address Defendant’s contract impairment argument on preservation grounds. Though I have reservations about the opinion’s resolution of the due process claims, I feel compelled to concur and provide my own observations.
{127} As I understand it, Defendant’s sole request is that he and other sex offenders be provided an opportunity to prove that they are not recidivists and that they will not offend in the future. One must be struck by the modesty of the request. Defendant does not argue that the Legislature may not enact SORNA with its full array of registration and notification provisions. He simply asserts that he should be allowed to try and prove that he is not an appropriate target of the regulatory and protective goals of SORNA.
{128} As noted by Amicus, one line of argument is apparently foreclosed to Defendant. In response to a strictly procedural challenge, the Supreme Court held that an offender subject to Connecticut’s version of SORNA is not entitled to a hearing to prove he is not currently dangerous because that fact is “of no consequence under Connecticut’s Megan’s Law.” Connecticut Dep’t of Pub. Safety v. Doe, 123 S.Ct. at 1164. The Supreme Court specifically declined to consider whether the statute was vulnerable to a substantive due process challenge.
{129} Connecticut v. Doe is enigmatic in that it provides no explanation for its holding other than the observation that registration under Connecticut’s statute is based solely on conviction for certain listed sexual offenses. The Court assumed arguendo that the defendant was deprived of a liberty interest but held that that fact did not entitle him to a hearing. This approach seems to be at odds with prior cases which direct procedural due process 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, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (citations omitted).
{130} 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, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (holding that failure to renew the employment of a nontenured 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, 89 S.Ct. 1843, 23 L.Ed.2d 404 (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.
{131} 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 eases 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.
{132} 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.
{133} 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.
{134} 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, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), would be a useful approach. Unfortunately, Defendant made no argument under our State Constitution.
{135} I predict that a ease 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.