John Doe v. DEPT. OF PUBLIC SAFETY AND CORRECTIONAL SERVICES

⁶³⁰ WRIGHT, J. This appeal presents a constitutional challenge to Maryland’s sex offender registration law. The Circuit Court for Baltimore City rejected appellant John Doe’s contention that forcing him to register with local law enforcement every six months for the remainder of his life, without a showing of present or future dangerousness, violated his procedural due process, equal protection, and privacy rights under both the United States and the Maryland Constitutions. For the reasons that follow, we affirm. Facts and Procedural History On February 8, 1977, John Doe was convicted of rape in Baltimore County Circuit Court and sentenced to thirty years imprisonment.

He was paroled on September 21, 1995, but violated his parole 1 and was returned to prison before being released on mandatory supervision on September 21, 1998. The period of mandatory supervision expired on April 9, 2007. Because he was under supervision on October 1, 2001, Doe was required to register as a sex offender, and had done so. John Doe objects to the registration requirement contending that, at age 57, he poses no danger to the community.

He cites the following facts to show that he has integrated into society: he has been married for ten years, has two children, owns a home, is employed, and attends community college. Doe filed a declaratory judgment action in the Circuit Court for Baltimore City on April 16, 2007, seeking a declaration that it is unconstitutional to require him to register as a sex offender for the rest of his life. He argues that, because the law does not require a showing that the registrant poses a risk of recidivism, it violates his procedural due process, equal protection, and privacy rights under both the United States and Maryland constitutions. Appellee, the Department of Public Safety and Correctional Services, filed a motion for summary judgment noting that there are no factual issues in ⁶³¹ dispute in this case.

The circuit court granted the motion after a hearing. Doe timely appealed to this Court on March 10, 2008. Discussion Every state in the United States has some type of sex offender registration law. See Smith v. Doe, 538 U.S. 84, 90 , 123 S.Ct. 1140 , 155 L.Ed.2d 164 (2003) (“By 1996, every State, the District of Columbia, and the Federal Government had enacted some [type] of [sex offender registration law].”).

This development was encouraged by the federal government, which conditioned a state’s continued receipt of some federal crime-fighting funds on the passage of such a law. See 42 U.S.C. § 14071 (originally passed as the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Title 17, 108 Stat.2038). Maryland’s law requires a “sexually violent offender” to register in person with local law enforcement every six months for the remainder of his life. 2 Md.Code (2001, 2008 ReplVol.), Criminal Procedure Article (“CP”), § ll-707(a)(2)(i). A “sexually violent offender” is defined to include anyone convicted of a “sexually violent offense,” or an attempt to commit such an offense.

CP § 11-701(j). The term “sexually violent offense” includes a violation of Md.Code (2002), Criminal Law Article (“CL”), § 3-303(a), which forbids “engagfing] in vaginal intercourse with another by force, or the threat of force, without the consent of the other.” See CP § ll-701(k). In other words, anyone convicted of rape falls within the category of a “sexually violent offender” for the remainder of his life. Although John Doe was convicted in 1977 and the statute was not enacted until 2001, it is to “be applied retroactively to include a registrant convicted of an offense committed before July 1, 1997, and ⁶³² who is under the custody or supervision of a supervising authority on October 1, 2001.” CP § ll-702.1(a).

I. Procedural Due Process Doe cites a footnote in Young v. State, 370 Md. 686 , 806 A.2d 233 (2002), in which the Court of Appeals, in dicta, noted that the sex offender registration law might violate procedural due process: [T]he petition for certiorari in the case sub judice raised only the issue of whether the registration statute was a punitive one, triggering the criminal due process protections of Apprendi, and not the issue of whether registration and notification under the statute meet the requirements of civil due process pursuant to the balancing test enunciated in Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976), and its progeny. We do not, therefore, address the issue of whether the Due Process Clause of the Fourteenth Amendment requires a particularized risk assessment of each registrant, pursuant to specific procedures, to determine which statutorily eligible offenders pose a risk to the community prior to registration, notification, and Internet dissemination. Cf. Doe v. Attorney Gen., 426 Mass. 136 , 686 N.E.2d 1007 , 1014 (Mass.1997) (“[A registrant] is entitled to a hearing and a determination as to ... whether sex offender information concerning him should be available on request.”).

Our conclusion that § 792 is not punitive and does not violate the strictures of Apprendi should not be construed as holding that the sex offender registration and community notification statute does not violate due process in any way, particularly in light of the newly initiated Internet notification, which threatens widespread disclosure of highly personal data and may implicate social ostracism, loss of employment opportunities, and possibly verbal and physical harassment. It is arguable that widespread Internet community notification stigmatizes registrants and implicates liberty and privacy interests that would satisfy the “stigma plus” test utilized to analyze civil due process challenges in ⁶³³ many of the federal circuits, therefore requiring certain procedural due process protections beyond those provided in the statute prior to community notification. See, e.g., Noble v. Board of Parole and Post-Prison Supervision, 327 Ore. 485 , 964 P.2d 990 (1998) (holding that the parole board’s designation of an individual as a “predatory sex offender” for the purpose of the Oregon community notification statute implicated a liberty interest entitling a sex offender, as a matter of procedural due process, to notice and a hearing prior to designation); United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 762 , 109 S.Ct. 1468, 1476 , 103 L.Ed.2d 774 (1989) (recognizing a privacy right in the “individual interest in avoiding disclosure of personal matters,” even if such information is available in public records); Paul v. Davis, 424 U.S. 693, 706 , 96 S.Ct. 1155, 1163 , 47 L.Ed.2d 405 (1976); Wisconsin v. Constantineau, 400 U.S. 433, 437 , 91 S.Ct. 507, 514 , 27 L.Ed.2d 515 (1971); Doe, 426 Mass. 136 , 686 N.E.2d at 1013-14 (discussing privacy interests in information that is publically available); Wayne A. Logan, Liberty Interests in the Preventive State: Procedural Due Process and Sex Offender Community Notification Laws, 89 J. CRIM. L. & CRIMINOLOGY 1167, 1176 n. 45 (1999); see generally Shields v. Burge, 874 F.2d 1201, 1209 (7th Cir.1989) (referring to privacy interests in “confidentiality” and “autonomy”).

Id. at 718 n. 13, 806 A.2d 233 . A year after the Young decision, however, the Supreme Court addressed the issue of whether Connecticut’s sex offender registration statute violated the procedural due process protections of the Fourteenth Amendment. Connecticut Dep’t of Pub. Safety v. Doe, 538 U.S. 1 , 123 S.Ct. 1160 , 155 L.Ed.2d 98 (2003).

Connecticut DPS overturned the Second Circuit’s decision that “the Due Process Clause entitles [registrants] to a hearing ‘to determine whether or not they are particularly likely to be currently dangerous before being labeled as such by their inclusion in a publicly disseminated registry.’ ” Id. at ⁶³⁴ 6, 123 S.Ct. 1160 (quoting Doe v. Dep’t of Pub. Safety ex rel. Lee, 271 F.3d 38, 62 (2d Cir.2001)). The Supreme Court held: [E]ven assuming, arguendo, that respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact that is not material under the Connecticut statute. [Although] we [have] held that due process required the government to accord the plaintiff a hearing to prove or disprove a particular fact or set of facts[,] ... in each of these cases, the fact in question was concededly relevant to the inquiry at hand.

Here, however, the fact that respondent seeks to prove—that he is not currently dangerous—is of no consequence under Connecticut’s [sex offender registration law]. As the [Department of Public Safety] Website explains, the law’s requirements turn on an offender’s conviction alone—a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. 271 F.3d at 44 (“ ‘Individuals included within the registry are included solely by virtue of their conviction record and state law’ ” (emphasis added)).... In short, even if respondent could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders—currently dangerous or not—must be publicly disclosed. Unless respondent can show that that substantive rule of law is defective (by conflicting with a provision of the Constitution), any hearing on current dangerousness is a bootless exercise....

States are not barred by principles of “procedural due process” from drawing such classifications. Michael H. v. Gerald D., 491 U.S. 110, 120 , 109 S.Ct. 2333 , 105 L.Ed.2d 91 (1989) (plurality opinion) (emphasis in original) .... Because the question is not properly before us, we express no opinion as to whether Connecticut’s [ ] Law violates principles of substantive due process. 538 U.S. at 7-8, 123 S.Ct. 1160 . In other words, the statute conclusively presumes that anyone convicted of a sex offense is dangerous, so it is the fact ⁶³⁵ of conviction that is relevant, not dangerousness itself.

The Supreme Court has held that this presumption is permissible. See Smith, supra, 538 U.S. at 103, 123 S.Ct. 1140 (holding that “Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism,” without any specific finding of future dangerousness). If the statute had nothing to do with dangerousness, it would have no rational purpose, because it would not help ensure public safety to force registration on people who pose no harm to society. Thus, if the conclusive presumption violates Doe’s substantive due process or' equal protection rights, he may have a claim.

But his claim is not one of procedural due process. Appellant attempts to distinguish this case from Connecticut DPS by pointing out that the internet site used by the Connecticut Department of Public Safety has a disclaimer, clarifying to the public that: The Department of Public Safety has not considered or assessed the specific risk of re-offense with regard to any individual prior to his or her inclusion within this registry, and has made no determination that any individual included in the registry is currently dangerous. Individuals included within the registry are included solely by virtue of their conviction record and state law. The main purpose of providing this data on the Internet is to make the information more easily available and accessible, not to warn about any specific individual. http://www.ct.gov/dps/cwp/view.asp?a=2157 & q=294474.

The Maryland site has no such disclaimer, either on the website or as part of the “Terms and Conditions” for its use. But, although the Supreme Court made brief mention of the disclaimer in its opinion, see id. at 5, 123 S.Ct. 1160 the requirements of the statute, not the disclaimer, was the basis for the Court’s decision. The Maryland statute is not distinguishable from the Connecticut statute. Appellant urges us to interpret Article 24 of the Maryland Declaration of Rights more broadly than the Fourteenth ⁶³⁶ Amendment, and hold that additional process is required before a sex offender can be added to the Maryland registry.

Article 24, which provides that “no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land,” is in pari materia with the Due Process Clause of the Fourteenth Amendment. See Dua v. Comcast Cable of Md., Inc., 370 Md. 604, 628 , 805 A.2d 1061 (2002). Therefore, we decline to interpret Article 24 more expansively in this case, as we are persuaded by the reasoning in Connecticut DPS. Like the Supreme Court in Connecticut DPS, we note, that John Doe has not brought a substantive due process claim, and does not express any opinion on that issue.

See Connecticut DPS, supra, 538 U.S. at 8, 123 S.Ct. 1160 .

II

Equal Protection We turn next to appellant’s equal protection claim, brought under both the Fourteenth Amendment and Article 24. He argues that the statute is arbitrary because it lumps all past offenders together, regardless of their actual dangerousness. As a result, Doe contends, the statute violates his right to equal protection of the laws. “Although the Maryland Constitution does not contain an express guarantee of equal protection of the laws, it is well established that Article 24 embodies the same equal protection concepts found in the Fourteenth Amendment to the U.S. Constitution.” Verzi v. Baltimore County, 333 Md. 411, 417 , 635 A.2d 967 (1994) (citing Kirsch v. Prince George’s County, 331 Md. 89, 96 , 626 A.2d 372 (1993)) (additional citations omitted). The basic concept behind equal protection is that, when the government decides to treat people differently based on a particular characteristic, its distinctions must be justified.

See, e.g., McLaughlin v. Florida, 379 U.S. 184, 191 , 85 S.Ct. 283 , 13 L.Ed.2d 222 (1964) (holding that the court must determine “whether the classifications drawn in a statute are reasonable in light of its purpose”). The level of justifica ⁶³⁷ tion required varies; if the government distinguishes based on a suspect class, or if a fundamental right is involved, strict scrutiny must be applied, and the government must show that the classification “under review is ‘narrowly tailored’ to achieve a ‘compelling’ government interest.” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist.

No. 1, 551 U.S. 701 , 127 S.Ct. 2738 , 168 L.Ed.2d 508 (2007) (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 , 115 S.Ct. 2097 , 132 L.Ed.2d 158 (1995)). 3 Otherwise, we will apply rational basis review, and the burden is on the challenger to negate “any reasonably conceivable state of facts that could provide a rational basis for the classification.” Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366 , 121 S.Ct. 955 , 148 L.Ed.2d 866 (2001) (citations omitted). There need only be a “rational relationship between the disparity of treatment and some legitimate governmental purpose.” Id. (Citations omitted). A. Level of Scrutiny The Supreme Court has established that the “suspect classes” to which strict scrutiny applies are race, nationality, and alienage.

See Richmond v. J.A. Croson Co., 488 U.S. 469, 494 , 109 S.Ct. 706 , 102 L.Ed.2d 854 (1989) (“The highly suspect nature of classifications based on race, nationality, or ⁶³⁸ alienage is well established.” (Quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 105 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973) (Marshall, J., dissenting) (footnotes omitted)). This is because those particular groups have been “saddled with [ ] disabilities, or subjected to [ ] a history of purposeful unequal treatment, or relegated to [ ] a position of political powerlessness,” and therefore “command extraordinary protection from the majoritarian political process.” San Antonio Indep.

Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973). One could certainly argue that sex offenders are saddled with disabilities, such as the requirement that they register for life, and that they are politically powerless, since society reviles them and treats them as pariahs. See, e.g., Dave Newbart, Registry Won’t Stop Sex Crime, Offenders Say, Chicago Tribune, Dec. 22, 1997, at Ml (discussing a study conducted on the opinions of sex offenders); the researcher noted: “They know that society thinks they are scum.”); Andre Henderson, More Sexual Offenders Serving Time: Increased Reporting of Crimes Leads to Increasing Prison Population, Milwaukee Journal Sentinel, Sept. 24, 1995, at A20 (“Few members of society are as reviled as sex offenders.”).

Yet unlike the people in the established suspect classes, who are members of the class because of an accident of birth, people classified as sex offenders had control over whether to become a class member. See Kahn v. Shevin, 416 U.S. 351, 357 , 94 S.Ct. 1734 , 40 L.Ed.2d 189 (1974) (Brennan, J., dissenting) (noting that classifications requiring strict scrutiny are “generally [based on] immutable characteristics over which individuals have little or no control”). Their situation is similar to that of the illegal aliens in Plyler v. Doe, 457 U.S. 202 , 102 S.Ct. 2382 , 72 L.Ed.2d 786 (1982), whom the Supreme Court held are not a suspect class because undocumented status is not an “immutable characteristic.” Id. at 220 . Instead, it is “the product of conscious, indeed unlawful, action.” Id.

Although some would argue that sex offenders are born with their sexual proclivities, or develop them early in life, we must assume that they possess the ability to refrain from ⁶³⁹ acting on them in a way that harms others. Because their voluntary actions put them in the disfavored class, we hold that the “sex offender” class is not suspect. We now turn to whether the registration statute implicates a fundamental right. Fundamental rights or interests are those “explicitly or implicitly guaranteed” by the federal constitution, San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 33-34 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973); see Police Department of Chicago v. Mosley, 408 U.S. 92, 101 , 92 S.Ct. 2286 , 33 L.Ed.2d 212 (1972) (first amendment rights), and they, as presently delineated by the Supreme Court, include the right to vote, Harper v. Virginia Bd. of Elections, 383 U.S. 663 , 86 S.Ct. 1079 , 16 L.Ed.2d 169 (1966), the right of interstate travel, Shapiro v. Thompson, 394 U.S. 618 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 (1969), the right of equal