McCabe v. Com.

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In 2003, the General Assembly repealed the existing sex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.

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 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.

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