John Doe v. State of Alaska, Department of Public Safety (6/14/2019) sp-7375

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John Doe v. State of Alaska, Department of Public Safety (6/14/2019) sp-7375

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THE SUPREME COURT OF THE STATE OF ALASKA

JOHN DOE, )

) Supreme Court No. S-16748

Appellant, )

) Superior Court No. 3AN-16-05027 CI

v. )

) O P I N I O N

STATE OF ALASKA, DEPARTMENT )

OF PUBLIC SAFETY, ) No. 7375 - June 14, 2019

)

Appellee. )

)

Appeal from the Superior Court of the State of Alaska, Third

Judicial District, Anchorage, Mark Rindner, Judge.

Appearances: Darryl L. Thompson, Darryl L. Thompson,

P.C. , Anchorage, for Appellant. John J. Novak, Assistant

Attorney General, Anchorage, and Jahna Lindemuth,

Attorney General, Juneau, for Appellee.

Before: Bolger, Chief Justice, Stowers, Maassen, Carney,

Justices, and Matthews, Senior Justice. [Winfree, Justice,

not participating.]

MATTHEWS, Senior Justice.

BOLGER, Chief Justice, with whom STOWERS, Justice, j oins, dissenting.

* Sitting by assignment made under article IV, section 11 of the Alaska

Constitution and Alaska Administrative Rule 23(a).

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I. INTRODUCTION

This appeal presents two questions concerning the Alaska Sexual Offender

Registration Act (ASORA). The first is whether ASORA's registration requirements

may be imposed on sex offenders who have moved to the state of Alaska after

committing sex offenses elsewhere. The second is whether ASORA violates due process

by requiring all sex offenders to register without providing a procedure for them to

establish that they do not represent a threat to the public. We conclude that ASORA's

registration requirements can constitutionally be applied to out-of-state offenders. We

also conclude that ASORA violates due process, but its defect may be cured by

providing a procedure for offenders to establish their non-dangerousness.

II. FACTUAL AND PROCEDURAL BACKGROUND

In 2000 John Doe was convicted of aggravated sexual battery in Virginia.

He was sentenced to five years imprisonment, with all time suspended, and a five-year

term of probation. Under Virginia law Doe was required to register as a sex offender.

Doe moved to Alaska around the first of January 2003. On January 6, 2003, he

registered as a sex offender. On April 11, 2003, the Department of Public Safety (DPS)

wrote Doe indicating that he had to register annually in January of each year. He did so

in 2004 and 2005. On February 4, 2005, DPS wrote Doe stating that he was required to

same elements as sexual assault [first] degree (AS 11.4 1.4 10), which is an aggravated

offense that requires quarterly verification of your sex offender registration information."

1 See AS 12.63.010-.100; AS 18.65.087.

2 See Va. Code Ann. § 18.2-67.3 (1999).

3 Va. Code Ann. § 19.2-298.1 (West 2000) (repealed 2003).

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Doe did not comply with this new requirement and has not registered since January of

2005. In 2007, Doe was convicted of second degree failure to register as a sex offender.

In 2016 Doe filed suit requesting "[a] declaratory judgment which declares

that the Alaska Department of Public Safety lacks jurisdiction to impose the ASORA

upon the plaintiff, that the ASORA violates plaintiff's substantive due process rights and

that the Department's appeal procedures are inadequate and deny procedural due

process." He also sought an injunction enj oining enforcement of ASORA against him.

Doe and the State filed cross-motions for summary judgment. After briefing and oral

argument, the superior court entered an order granting the State's motion and denying

Doe's. The superior court entered a final judgment in accordance with its summary

judgment ruling and Doe filed the current appeal.

III. STANDARD OF REVIEW

This case involves questions of law. We review such questions de novo,

"adopting the rule of law that is most persuasive in light of precedent, reason, and

policy."

IV. DISCUSSION

A. ASORA

ASORA requires sex offenders to register with the Department of

Corrections, the Troopers, or the local police within 30 days before their release from

incarceration or within one day following conviction if their sentence does not include

4 Kiva O. v. State, Dep 't of Health & Soc. Servs., Off ice of Children 's Servs.,

408 P.3d 1181, 1185 (Alaska 2018) (quoting Bigley v. Alaska Psy chiatric Inst., 208 P.3d

168, 179 (Alaska 2009)).

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j ail time. A "sex offender" is a person who has been convicted of specified crimes that

vary widely in severity. Covered crimes include: murder in the course of a sexual

offense;7 child kidnapping;8 forcible rape and rape of a child;9 lesser degrees of sexual

assault and sexual abuse of a minor,10 including attempts;11 online enticement and

unlawful exploitation of a minor;12 some types of indecent exposure;13 distribution or

possession of child pornography and distribution of indecent material to minors; sex

trafficking prostitutes under 20 years of age;15 and patronizing a prostitute under 18 years

of age.16 Some of these crimes encompass consensual sexual acts between adolescents

5 AS 12.63.010(a), (b).

6 AS 12.63.100(6), (7).

7 AS 12.63.100(7)(A), (B); AS 11.4 1.100(a)(3); AS 11.4 1.110(a)(3).

8 AS 12.63.100(2); AS 11.4 1.100(a)(3); AS 11.4 1.300.

9 AS 12.63.100(1)(C); AS 11.4 1.4 10; AS 11.4 1.434.

10 AS 12.63.100(7)(C)(I), (ii); AS 11.4 1.420; AS 11.4 1.425; AS 11.4 1.427;

AS 11.4 1.436; AS 11.4 1.438; AS 11.4 1.440(a)(2).

11 AS 12.63.100(7)(C); AS 12.63.100(1)(C).

12 AS 12.63.100(7)(C)(iii); AS 11.4 1.452; AS 11.4 1.455.

13 AS 12.63.100(7)(C)(iii), (iv); AS 11.4 1.458; AS 11.4 1.460.

14 AS 12.63.100(7)(C)(v); AS 11.61.125; AS 11.61.127; AS 11.61.128.

15 AS 12.63.100(7)(C)(vi); AS 11.66.110; AS 11.66.130(a)(2).

16 AS 12.63.100(7)(C)(ix); AS 11.66.100(a)(2).

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separated by as little as three years of age,17 and others encompass "sexting" where

sometimes no age difference is required.

All registrants must disclose their name, address, place of employment, date

of birth, information about their conviction, aliases, driver's license number, information

about the vehicles they have access to, any identifying physical features, anticipated

address changes, electronic addresses, and information about psychological treatment

received.19 Registrants are photographed and fingerprinted.20 They must periodically re-

offenses must re-register quarterly; others must re-register annually.21 All registration

forms must be sworn to before a person authorized to administer oaths.22 A registrant

who changes residences or electronic addresses must give notice within one working

day.

ASORA requires DPS to maintain a central registry of sex offenders that

contains the information obtained under ASORA.24 Public access is authorized to

offenders' names, aliases, dates of birth, addresses, photographs, physical descriptions,

17 See AS 11.4 1.436(a)(6); AS 12.63.100(7)(C)(I).

18 See AS 11.61.127; AS 12.63.100(7)(C)(v).

19 AS 12.63.010(b)(1).

20 AS 12.63.010(b)(2).

21 AS 12.63.010(d).

22 AS 12.63.010(e).

23 AS 12.63.010(c).

24 AS 18.65.087.

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motor vehicle information, places of employment, public information about their

convictions and sentences, and whether the offender is in compliance with ASORA or

cannot be located.25 DPS posts this information on the internet for public viewing.26 A

photograph of each registrant appears under the caption "Sex Offender/Child Kidnapper

Registry Entry Detail" followed by the registrant's information described above. 27

The legislature made the following findings when enacting ASORA:

(1) [S]ex offenders pose a high risk of reoffending after

release from custody;

(2) protecting the public from sex offenders is a primary

governmental interest;

(3) the privacy interests of persons convicted of sex

offenses are less important than the government's interest in

public safety; and

(4) release of certain information about sex offenders to

public agencies and the general public will assist in

protecting the public safety.[28]

All sex offenders must register at least every year for 15 years,29 while

repeat offenders or offenders guilty of one "aggravated" offense - generally any sex

25 AS 18.65.087(b).

26 AS 18.65.087(h). See Sex Offe nder/ Child Kidnapp er Registry , ALASKA

DEP'T OF PUBLIC SAFETY, http://www.dps.state.ak.us/sorweb/sorweb.aspx (follow "view

all entries" hyperlink) (last visited Apr. 1, 2019).

27 See Sex Off ender/ Child Kidnapp er Registry , ALASKA DEP 'T OF PUBLIC

SAFETY, http://www.dps.state.ak.us/sorweb/sorweb.aspx (follow "view all entries"

hyperlink, then select a name) (last visited Apr. 1, 2019).

28 Ch. 4 1, § 1, SLA 1994.

29 AS 12.63.010(d)(1); AS 12.63.020(a)(2).

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offense more serious than sexual assault in the second degree or sexual abuse of a minor

30 31

in the second degree - must register quarterly for life. People who have been

convicted of crimes under similar laws in other jurisdictions are also sex offenders under

ASORA,32 and they must register as such by the next working day of becoming

physically present in the state.

ASORA's provisions require Doe to register and re-register every three

months for the rest of his life as long as he remains in Alaska.

B. Jurisdiction

Doe argues (1) that "Alaska lacks jurisdiction to impose punitive provisions

upon a person whose acts were fully consummated outside of its jurisdiction," (2) that

ASORA's registration requirements are punitive, and (3) that Alaska therefore lacks

jurisdiction to impose ASORA's requirements on out-of-state offenders. This argument

is logical in form, but its validity depends on whether its premises are correct.

The parties mainly focus on the second premise, disputing whether

ASORA's requirements are punitive. Doe argues that they are punitive based on our

2008 decision in Doe v. State (Doe 08).

30 AS 12.63.100(1).

31 AS 12.63.010(d)(2); AS 12.63.020(a)(1).

32 AS 12.63.100(6), (7).

33 AS 12.63.010(a)(3); AS 12.63.100(6). See State, Dep 't of Public Saf ety v.

Doe I, 425 P.3d 115, 119 (Alaska 2018) (analyzing what constitutes a "similar" offense

under ASORA).

34 AS 12.63.010(d)(2).

35 189 P.3d 999 (Alaska 2008).

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In Doe 08 we held that the application of ASORA's registration

requirements to an offender who was convicted of sex offenses and sentenced nine years

before ASORA's effective date violated the ex post facto clause of article I, section 15

36 The critical question was "whether ASORA imposes

of the Alaska Constitution.

additional punishment on individuals, like Doe, who committed their crimes before

ASORA became effective."37 To answer this question we employed a two-part test,

called the "intent-effects" test. First, we ask whether the legislature intended the law

in question to be civil and non-punitive, and thus merely regulatory, or a punishment.

If the legislative purpose is found to be "not punishment but regulation," the second part

of the test requires an inquiry as to "whether the effects of [the] regulation are so

punitive" that we must conclude that the statute is punitive in nature.40

In Doe 08 we found it unnecessary to address the first step of the intent-

effects test because, regardless of the legislature's intent, we found that the effects of

ASORA were primarily punitive and therefore concluded that ASORA could not be

applied to offenders who committed their crimes before the law's effective date.

In deciding whether the effects of ASORA were primarily regulatory or

36 Id. at 1000-01, 1019; see Alaska Const. art. I, § 15 ("No . . . ex post facto

law shall be passed.").

37 Doe 08, 189 P.3d at 1003.

38 Id. at 1007 (citing Smith v. Doe, 538 U.S. 84, 92 (2003)).

39 Id.

40 Id.

41 Id. at 1007 ("It is not necessary to address the first step of the test . . .

because the second part of the test - whether ASORA's effects are punitive - resolves

the dispute before us."), 1018 ("[W]e conclude that ASORA's effects are punitive.").

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punitive, we analyzed seven factors:

(1) "[w]hether the sanction involves an affirmative disability

or restraint";

(2) "whether it has historically been regarded as a

punishment";

(3) "whether it comes into play only on a finding of scienter";

(4) "whether its operation will promote the traditional aims of

punishment - retribution and deterrence";

(5) "whether the behavior to which it applies is already a

crime";

(6) whether an alternative purpose to which it may rationally

be connected is assignable for it"; and

(7) "whether it appears excessive in relation to the alternative

purpose assigned."[42]

The State argues that many of the seven factors we relied on in Doe 08 do

not indicate a punitive effect here because they were fully avoidable if Doe had chosen

not to move to Alaska. The State also argues that some of the factors point to regulatory

effects on other grounds. As to the scienter factor, the State asserts that this is absent

because no finding of knowledge of wrongfulness is required to impose a duty to register

on an out-of-state offender. Simply moving to the state is the triggering act.43 Further,

the State argues, traditional aims of punishment are absent because the State has no

interest in punishing out-of-state offenders; rather, the State's interest lies in tracking sex

offenders and informing the public about them. Similarly, the factor that asks whether

the behavior the statute covers is already a crime comes out differently, according to the

42 Id. at 1008 (alteration in original) (quoting Kennedy v. Mendoza-Martinez,

372 U.S. 144, 168-69 (1963)).

43 AS 12.63.010(a)(3).

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State, because the relevant behavior is noncriminal - again, merely moving to the state.

The State also contends that a regulatory policy interest is present here that

was not present in Doe 08: requiring out-of-state offenders to register "ensures that

Alaska does not become a safe haven for convicted sex offenders."

Summing up, the State argues "there are many purposes and effects of

ASORA, some punitive and some non-punitive. . . . Consideration of the seven [Doe 08]

factors and other relevant considerations demonstrate the non-punitive, regulatory

purposes and effects of ASORA override any punitive effects the registration

requirement may have in this case."44

While some of the State's arguments are plausible, we find it unnecessary

to rule on them because we conclude that the first premise of Doe's argument is invalid.

44 The State's arguments on appeal largely mirror the superior court's written

decision, which concluded:

Based on this Court's consideration of the seven factors

applied in Doe, the non-punitive, regulatory purposes and

effects of ASORA's registration requirements override any

punitive effect the registration provisions of ASORA might

have. . . . And unlike the offender in Doe, Doe in this case

could have avoided application of the statute to him. Because

Alaska's interests are regulatory and the effects of the

registration provisions of ASORA are not punitive, the

restrictions on punishment suggested in Doe do not apply.

Alaska has jurisdiction to impose the registration

requirements on Doe based on his out of state conviction. To

the extent Doe argues Alaska cannot require him to register

at all when he moves into the state, his argument does not

have merit. If Doe's arguments were accepted, sex offenders

would be free to leave their convicting state and move to

Alaska where they would not be subj ect to any registration

requirement.

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Doe contends that the State lacks jurisdiction to impose ASORA's registration

requirements on out-of-state offenders who are present in the state because the

requirements are sufficiently punitive to activate the Alaska constitutional prohibition

on ex post facto laws. However, this prohibition only bars application of ASORA to

offenders convicted in Alaska before ASORA's effective date.45

ASORA's requirements are both punitive and regulatory.46 We are not

aware of any authority that suggests that out-of-state offenders who move to the state

should not be subj ect to them. Doe relies on cases that hold that a state cannot prosecute

criminal acts that occur outside a state's boundaries unless such acts produce adverse

effects within the state.47 These cases are inapposite because they deal with the

jurisdiction to prosecute criminal offenses committed outside a state.48 By contrast, the

present case involves not the prosecution of offenders, but only their duty to register

once they are convicted - and only when they are present in the state.49 The situations

are not legally comparable because in the cases Doe cited, the State has no legitimate

45 See Doe 08, 189 P.3d at 1003 ("These constitutional prohibitions bar the

legislature from enacting any law that '. . . makes more burdensome the punishment for

a crime, after its commission . . . .' " (quoting State v. Anthony , 816 P.2d 1377, 1378

(Alaska 1991))).

46 We recognized in Doe 08 that ASORA's regulatory purposes and effects

were "undeniably legitimate and important" although "convincingly outweigh[ed]" by

the statute's punitive effects. Id. at 1018.

47 Doe cites Wheat v. State, 734 P.2d 1007, 1009 (Alaska App. 1987), and

State v. Dudley , 581 S.E.2d 171, 181-82 (S.C. App. 2003).

48 See Wheat, 734 P.3d at 1008 (noting that appeal dealt with jurisdiction for

criminal prosecutions); Dudley , 581 S.E.2d at 173 (same).

49 See AS 12.63.010(a)(3).

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interest in prosecution, whereas the State does have a legitimate interest - public safety

- with respect to registration for sex offenders.

Doe also relies on State Farm Mutual Automobile Insurance Co. v.

Camp bell.50 In State Farm the United States Supreme Court held that a civil defendant's

Fourteenth Amendment right to due process was violated by a state court's $145 million

punitive damages award where the compensatory damages were only $1 million.51 The

Court relied primarily on the fact that at trial the plaintiff offered substantial evidence

of the defendant's out-of-state conduct in other transactions, seemingly transforming the

case into "a platform to expose, and punish, the perceived deficiencies of [the

defendant's] operations throughout the country."52 The Court explained that "as a

general rule, . . . a State [does not] have a legitimate concern in imposing punitive

damages to punish a defendant for unlawful acts committed outside of the State's

jurisdiction."53 The Court was also concerned that "much of the out-of-state conduct was

lawful where it occurred"54 and that punishing a defendant for purported misconduct not

involving the plaintiff "creates the possibility of multiple punitive damages awards for

the same conduct; for in the usual case nonparties are not bound by the judgment some

50 538 U.S. 408 (2003).

51 Id. at 408, 429 ("The punitive award of $145 million, therefore, was neither

reasonable nor proportionate to the wrong committed, and it was an irrational and

arbitrary deprivation of the property of the defendant.").

52 Id. at 420-2 1.

53 Id. at 42 1.

54 Id. at 422.

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other plaintiff obtains."55

Requiring a sex offender with an out-of-state conviction to register under

ASORA is different from assessing punitive damages against a defendant for out-of-state

conduct against third parties. First, the State does have a legitimate public safety concern

in requiring out-of-state offenders who now reside in the state to register. Second, there

is no concern that a sex offender's conduct was lawful where it occurred - to the

contrary, by definition it resulted in a criminal conviction. Third, the Court's concern

about multiple damages awards for the same conduct has no application: being forced

to register as a sex offender in multiple states for the same offense is not like being

assessed multiple money judgments for the same conduct.

We conclude that Alaska is not barred by lack of jurisdiction from requiring

out-of-state offenders who are present in the state from registering under ASORA.

C. Due Process

1. The parties' arguments

Doe's second argument is that ASORA violates the due process clause of

the Alaska Constitution. In particular, he contends that ASORA infringes on a number

of constitutionally protected rights, including: the right to integrate into society, the right

to privacy, the right to be let alone, and the right to pursue employment. Doe contends

that these rights are fundamental and that their infringement can only be justified if the

State has a compelling interest and uses the least restrictive means available to vindicate

that interest. He argues that there is no compelling interest justifying registration if an

offender does not present a danger to the public, and that ASORA is deficient because

55 Id. at 423.

56 See Alaska Const. art. I, § 7.

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it "provides no mechanism whereby a registrant can be relieved of the requirement if

they prove they do not present a threat to the public." Doe also argues that even if there

exists a compelling state interest, ASORA is unconstitutional because it fails the least

restrictive means test. To satisfy that test, he contends, ASORA should contain

procedures through which a rehabilitated offender may escape its requirements, as well

as procedures to "calibrate the extent of public notification, if any, to a sex offender's

currently assigned dangerousness."

The State responds that ASORA does not violate substantive due process.

In particular, the State disputes that ASORA infringes any fundamental rights and that

therefore the "compelling interest/least restrictive means" test does not apply. Instead,

the State argues for a rational basis test, which ASORA would readily pass because the

statute "provides, in a usable form, the information that parents and others need to

protect themselves and their children from convicted sex offenders."57 The State also

argues that even if ASORA infringes a fundamental right, the State's interests are

57 The superior court in its written decision recognized that registration could

result in significant adverse affects on an offender's liberty:

Specific examples include offenders having difficulty finding

employment, losing their j obs, being forced to move

residences, receiving threats of violence, and being subj ect to

vigilantism and protests. Based on these potential effects,

requiring Doe to register as a sex offender under ASORA

may seriously affect his liberty.

But the court appears to have simply assumed without express analysis that the State's

interest in public safety underlying ASORA outweighed Doe's liberty interests:

"General interests predominate."

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compelling and there is no less restrictive means available to protect them.58

2. Substantive due process

The due process clause of the Alaska Constitution provides: "No person

shall be deprived of life, liberty, or property without due process of law."59 This clause

requires that adequate and fair procedures be employed when state action threatens

protected life, liberty, or property interests.60 This is procedural due process. It also may

bar state action that infringes such interests in the absence of a sufficient government

reason making procedures irrelevant.61 This is substantive due process. Substantive due

process is a doctrine that is meant to guard against unfair, irrational, or arbitrary state

conduct that "shock[s] the universal sense of justice."62

The distinction between procedural and substantive due process is

illustrated by Connecticut Dep artment of Public Saf ety v. Doe, a case involving

58 The State does not argue that ASORA's registration and public disclosure

provisions are severable and thus we do not consider that question.

59 Alaska Const. art. I, § 7.

60 See Millard v. Rankin, 265 F. Supp. 3d 12 11, 1234-35 (D. Colo. 2017)

("This constitutional concern . . . arises out of the basic unfairness of depriving citizens

of life, liberty, or property, through the application, not of law and legal processes, but

of arbitrary coercion." (quoting BM W of N. Am, Inc. v. Gore, 517 U.S. 559, 587 (1996)

(Breyer, J., concurring))).

61 See Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough,

527 P.2d 447, 452 (Alaska 1974) ("The constitutional guarantee of substantive due

process assures only that a legislative body's decision is not arbitrary but instead based

upon some rational policy.").

62 Church v. State, Dep 't of Revenue, 973 P.2d 1125, 1130 (Alaska 1999)

(quoting In re Obermey er, 717 P.2d 382, 387 (Alaska 1986), abrogated on other

grounds by In re Bettine, 840 P.2d 994, 997 (Alaska 1992)).

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Connecticut's sex offender registration statute.63 A procedural due process challenge

was made to Connecticut's offense-based registration system which, like Alaska's,64

required registration based on an individual's prior conviction rather than an individual's

current dangerousness.65 The United States Court of Appeals for the Second Circuit held

that this system deprived sex offenders of a protected liberty interest because officials

did not afford registrants a hearing to determine whether they are likely to be "currently

dangerous."66 The Supreme Court reversed, holding that procedural due process did not

apply because, under the Connecticut system, whether a registrant is currently dangerous

is irrelevant: "[D]ue process does not require the opportunity to prove a fact that is not

material to [a] State's statutory scheme."67 But the Court also explained that the statute's

failure to exclude non-dangerous offenders from registration requirements could be a

violation of substantive due process:

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. It may be that respondent's claim is

actually a substantive challenge to Connecticut's statute

"recast in 'procedural due process' terms." Nonetheless,

63 538 U.S. 1 (2003).

64 AS 12.63.010(a); AS 12.63.100(6).

65 Connecticut, 538 U.S. at 4.

66 Doe v. Dep 't of Pub. Saf ety ex rel Lee, 271 F.3d 38, 50, 62 (2d Cir. 2001).

67 Connecticut, 538 U.S. at 4.

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respondent expressly disavows any reliance on the

substantive component of the Fourteenth Amendment's

protections, and maintains, as he did below, that his challenge

is strictly a procedural one. But States are not barred by

principles of "p rocedural due process" from drawing such

classifications. Such claims "must ultimately be analyzed" in

terms of substantive, not procedural, due process. Because

the question is not properly before us, we express no opinion

as to whether Connecticut's Megan's Law violates principles

of substantive due process.[68]

3. Why we apply strict scrutiny

We have employed three standards under which claims of substantive due

process violations may be reviewed: strict scrutiny, intermediate scrutiny, and rational

basis review.69 Under strict scrutiny, when a law substantially burdens a fundamental

right, the State must articulate a comp elling state interest that justifies infringing the right

and must demonstrate that no less restrictive means of advancing the state interest

exists. Under intermediate scrutiny, when state action interferes with an individual's

liberty interest that is not characterized as fundamental, the State must show a legitimate

state interest and a "close and substantial relationship" between that interest and the

chosen means of achieving it.71 Under rational basis review, the party claiming a

substantive due process violation has the burden of showing that there is no rational basis

68 Id. at 7-8 (emphasis in original) (internal citations omitted).

69 Huff man v. State, 204 P.3d 339, 345-46 (Alaska 2009); Concerned Citizens

of S. Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974).

70 Huff man, 204 P.3d at 345-46 (quoting My ers v. Alaska Psy chiatric Inst.,

138 P.3d 238, 245-46 (Alaska 2006)).

71 Samp son v. State, 31 P.3d 88, 91 (Alaska 2001).

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for the challenged legislation.72 "This burden is a heavy one, for if any conceivable

legitimate public policy for the enactment is apparent on its face or is offered by those

defending the enactment, the opponents of the measure must disprove the factual basis

for such a justification."73

We believe that strict scrutiny applies in the present case because the right

to privacy is an explicitly enumerated right under the Alaska Constitution and thus

should generally be considered fundamental. In so concluding we follow the lead of

the United States Supreme Court, which has held that the"liberty" protected by the due

process clause includes the specific freedoms enumerated in the Bill of Rights.75 The

right to privacy as an enumerated freedom under the Alaska Constitution is entitled to

comparable respect and standing in our jurisprudence.76

We limit this conclusion, however, to cases where the alleged due process

72 Concerned Citizens, 527 P.2d at 452.

73 Id.

74 Article I, section 22 of the Alaska Constitution provides that "[t]he right of

the people to privacy is recognized and shall not be infringed."

75 Washington v. Glucksberg, 52 1 U.S. 702, 720 (1997) ("In a long line of

cases, we have held that, in addition to the specific freedoms protected by the Bill of

Rights, the 'liberty' specially protected by the Due Process Clause includes [certain other

rights].").

76 We have stressed the importance of the right to privacy: "Since the citizens

of Alaska, with their strong emphasis on individual liberty, enacted an amendment to the

Alaska Constitution expressly providing for a right to privacy not found in the United

States Constitution, . . . the right is broader in scope than that of the Federal

Constitution." Anchorage Police Dep 't Emp ls. Ass 'n v. Mun. of Anchorage, 24 P.3d

547, 550 (Alaska 2001) (quoting Ravin v. State, 537 P.2d 494, 514-15 (Alaska 1975)

(Boochever, J., concurring)).

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violation rests on a right to privacy claim that, if asserted directly, would be analyzed

under strict scrutiny. This is such a case. Our right to privacy cases can be divided into

two categories: those that claim a right of personal autonomy,77 and those that seek to

shield sensitive personal information from public disclosure.78 This case falls in the latter

category. We have held that cases in the sensitive information category will be analyzed

using strict scrutiny, asking the following questions:

(1) [D]oes the party seeking to come within the protection of

the right to privacy have a legitimate expectation that the

materials or information will not be disclosed?

(2) [I]s disclosure nonetheless required to serve a compelling

state interest?

(3) [I]f so, will the necessary disclosures occur in that manner

which is least intrusive with respect to the right to privacy?[79]

Given that this method is used in direct claims of privacy violations involving the

disclosure of sensitive information, it would be anomalous to take a more permissive

approach when analyzing a claim that state action violates substantive due process

because it violates the right to privacy.

But the mere invocation of the right to privacy does not automatically

77 See Ravin, 537 P.2d at 500 ("[T]he zone of privacy involves . . . a right

of personal autonomy in relation to choices affecting an individual's personal life.").

78 See Alaska Wildlif e All. v. Rue, 948 P.2d 976, 980 (Alaska 1997) ("[U]nder

appropriate circumstances, a statute requiring the disclosure of a person's identity must

yield to the constitutional right to privacy.").

79 Id. (alterations omitted) (quoting Jones v. Jennings, 788 P.2d 732, 738

(Alaska 1990)); accord State v. Doe, 378 P.3d 704, 706 (Alaska 2016); Noff ke v. Perez,

178 P.3d 114 1, 1151 (Alaska 2008); Int 'l Ass 'n of Fire Fighters, Local 1264 v. Mun. of

Anchorage, 973 P.2d 1132, 1134 (Alaska 1999); Messerli v. State, 626 P.2d 81, 84

(Alaska 1980).

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trigger a strict scrutiny analysis. For the right to privacy to apply, there must be both a

legitimate expectation of privacy and a claim of a substantial infringement, as

distinguished from a minimal one.80 Further, when these requirements are met they only

establish the first step of strict scrutiny review. The right to privacy is neither absolute

nor unconditional, and still may be overcome by a statute enacted for compelling reasons

using means that are narrowly tailored to achieve the statute's obj ectives.

4. Legitimate expectation of privacy

We proceed to determine whether sex offenders have a legitimate

expectation of privacy in the information disclosed on the internet under ASORA. A

legitimate expectation of privacy is an expectation that "society is prepared to recognize

as reasonable."82 We assess the legitimacy or obj ective reasonableness of an expectation

of privacy without considering whether there are compelling governmental reasons that

outweigh the privacy claim. The sufficiency of the government's asserted countervailing

interest is the subj ect of the second step of the strict scrutiny analysis.83

As already stated, Alaska's right to privacy generally protects two types of

80 See Alaska Wildlif e, 948 P.2d at 980 (concluding that while public

employees generally lack expectation of privacy in fact of employment, they do have

legitimate expectation that their names will not be disclosed once credible threats are

made against them); see also Ranney v. Whitewater Eng 'g, 122 P.3d 2 14, 222 (Alaska

2005) (concluding that provision affording death benefits for spouses but not for

unmarried partners did not violate right to privacy because it imposed "only a minimal

burden on the relational freedom asserted").

81 See Huff man v. State, 204 P.3d 339, 345-46 (Alaska 2009).

82 Local 1264, 973 P.2d at 1134 (quoting Nathanson v. State, 554 P.2d 456,

458 (Alaska 1976)).

83 See, e.g., Alaska Wildlif e, 948 P.2d at 980-81; Jones, 788 P.2d at 738.

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interests. One is an individual's interest in personal autonomy and independence in

decision making. The other is an individual's interest in protecting "sensitive personal

information . . . which if, disclosed . . . , could cause embarrassment[,] anxiety,' "85

humiliation,86 harassment,87 or economic and physical reprisals.88 We are concerned here

with the latter type of protection.

We have recognized that a medical marijuana user has an interest in

keeping his usage of marijuana and his medical condition private; that a police officer

84 See, e.g., Huff man, 204 P.3d at 346 ("[T]he right to make decisions about

medical treatments for oneself or one's children is a fundamental liberty and privacy

right in Alaska.").

85 Local 1264, 973 P.2d at 1134 (first alteration in original) (quoting Doe v.

Alaska Sup erior Court, Third Judicial Dist., 72 1 P.2d 617, 629 (Alaska 1986)).

86 State v. Glass, 583 P.2d 872, 879-80 (Alaska 1978) ("The meaning of

privacy . . . [includes] protect[ing] 'the individual's interest in preserving his essential

dignity as a human being.' " (quoting Shirley Hufstedler, The Directions and

Misdirections of a Constitutional Right of Privacy , 26 Record of N.Y.C.B.A. 546, 550

(1971))).

87 See Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1137 (Alaska

1989) (recognizing common law right "to be free from harassment and constant intrusion

into one's daily affairs" (quoting Siggelkow v. State, 731 P.2d 57, 62 (Alaska 1987))) .

88 See State v. Planned Parenthood of Alaska, 35 P.3d 30, 40-4 1 (Alaska

2001) (holding that the "physical, psychological, and economic implications" of having

an abortion implicated privacy rights and thus warranted a strict scrutiny analysis for a

statute requiring minors to obtain parental consent or judicial authorization before having

an abortion); Messerli v. State, 626 P.2d 81, 88 (Alaska 1980) (holding that possibility

of "economic or other[]" reprisals could justify regulations protecting anonymity).

89 Rollins v. Ulmer, 15 P.3d 749, 752-53 (Alaska 2001) (concluding statute

establishing medical marijuana registry adequately protected registrants' privacy).

-2 1- 7375

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has a legitimate expectation of privacy in his personnel file; and that a statute requiring

a person who places a political advertisement in a newspaper to "reveal his name,

address, occupation, employer, and the amount of his expenditure" burdens the right to

privacy.91 "[D]isclosure of this information could lead to harassment or economic

reprisals by readers, or even by an employer who did not want his name associated with

particular issues."92 Similarly, we have recognized that a statute requiring public

officials to disclose clients or customers could infringe the privacy rights of the official's

patients.

The fact that a person has been convicted of a sex offense is, if anything,

more sensitive than the fact that a person has a serious illness, is a marijuana user, or sees

a particular doctor. Sex offenders are among the most despised people in our society.

Widespread publication of their conviction and personal details subj ects them to

community scorn and leaves them vulnerable to harassment and economic and physical

reprisals.94 These serious consequences squarely fall within the evils that the right to

90 Jones v. Jennings, 788 P.2d 732, 738 (Alaska 1990).

91 Messerli, 626 P.2d at 86.

92 Id.

93 Falcon v. Alaska Pub. Off ices Comm 'n, 570 P.2d 469, 479-80 (Alaska

1977).

94 Our case law has identified the serious harms that can result from internet

publication of information concerning a sex offender. In Doe v. State, Dep 't of Pub.

Saf ety , (Doe 04) we noted that the consequences flowing from registration were

"potentially destructive" and included: loss of employment, being forced to move,

threats of violence and actual violence, difficulty locating places to reside and work, and

being "subj ected to protests and group actions designed to force [offenders] out of their

(continued...)

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privacy was meant to guard against.

The history of article I, section 22 (describing the Alaska constitutional

right to privacy) suggests that the potential of computers to aggregate personal data was

one of the core reasons for its adoption. According to an informal attorney general

opinion, the legislature proposed this constitutional provision - which was later

approved by the voters - "in response to a . . . concern over government computers

generally." 95 Leading up to the amendment's adoption there were "persistent rumors

that the Alaska State Troopers were compiling secret dossiers on Alaska citizens,"

prompting "considerable concern in the legislature in 1972 over the potential of systems

94 (...continued)

j obs and homes." 92 P.3d 398, 4 10 (Alaska 2004).

In Doe 08 we noted our agreement with the observation that ASORA

"exposes registrants, through aggressive public notification of their crimes, to profound

humiliation and community-wide ostracism." 189 P.3d 999, 1009 (Alaska 2008). We

also endorsed the observation that "by posting registrants' names, addresses, and

employer addresses on the internet, the Act subj ects registrants to community obloquy

and scorn that damage them personally and professionally," and that "the practical effect

of this dissemination is that it leaves open the possibility that the registrant will be denied

employment and housing opportunities as a result of community hostility." Id. at 1009-

10 (alterations omitted) (first quoting Doe I v. Otte, 259 F.3d 979, 987 (9th Cir. 2001),

rev 'd sub nom. Smith v. Doe, 538 U.S. 84, 123 (2003); then citing id. at 988).

We stated in Doe 08 that "[o]utside Alaska, there have been reports of

incidents of suicide by and vigilantism against offenders on state registries." 189 P.3d

at 1010. Subsequent to the publication of Doe 08, there have been reports that registrants

in Alaska have been targeted for home invasion, robbery, and beating. See Tegan

Hanlon, Man Charged with Assaulting 3 in Anchorage Af ter Finding Addresses on Sex-

Off end er R eg is try , AN CH OR A G E DA ILY N E W S (Ju ly 2 7 , 2 0 16) ,

https://www.adn.com/alaska-news/crime-courts/2016/07/27/man-charged-with-assaul

ting-3-people-in-anchorage/.

95 1986 INFORMAL OP. ATT'Y GEN . 442 (citing numerous newspaper articles).

-23- 7375

----------------------- Page 24-----------------------

like [the Alaska Justice Information System] for invasion into the privacy of

individuals."96 Since concern about the privacy risks posed by computer databases of

personal information was central to the privacy amendment's adoption, the ASORA

compilation and notification provisions fall directly within the amendment's ambit.

The State argues (1) that a sex offender lacks a reasonable expectation of

privacy in registry information because the fact of a sex offender's conviction is a matter

of public record and (2) that his places of residence and employment are not of a

"sensitive" nature. We do not accept these arguments. As to the first, the challenged

publication here is not the public court file that shows a conviction, but rather the internet

publication of both the conviction and personal information in a compilation of sex

offenders.97 Second, an offender's address and employment information, when included

in such a compilation, is sensitive information because its publication can lead to serious

negative consequences that the right to privacy is meant to protect against.

With respect to the latter point, information concerning an offender's home

address and place of employment are not necessarily in the public domain. Revealing

a sex offender's home address potentially subj ects him to harassment and physical attack.

Revealing the offender's place of employment carries the same potential, plus it may

discourage potential employers from hiring sex offenders because of the possible loss of

business.

Returning to the first point, we recognized in Doe 08 that "[t]here is a

significant distinction between retaining public paper records of a conviction in state file

drawers and posting the same information on a state-sponsored website; this posting has

96 Id. at 44 1.

97 AS 18.65.087(a), (b).

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not merely improved public access but has broadly disseminated the registrant's

information."98 Similarly, we stated that "the harmful effects of ASORA stem not just

from the conviction but from the registration, disclosure, and dissemination

provisions."99 The Supreme Court of the United States has recognized this distinction

in a freedom of information case:

Plainly there is a vast difference between the public records

that might be found after a diligent search of courthouse files,

county archives, and local police stations throughout the

country and a computerized summary located in a single

clearinghouse of information.[100]

A number of courts have held that a sex offender's privacy rights are

implicated by internet publication of registration information, either because some of the

information is private or because the aggregation and accessibility of the information

raises legitimate privacy concerns, and have therefore applied strict or at least heightened

scrutiny.101 Both grounds apply in this case. As to the latter, we find particularly

98 189 P.3d at 1011.

99 Id.

100 U.S. Dep 't of Justice v. Rep orters Comm. For Freedom of Press, 489 U.S.

749, 764 (1989); cf . also id. at 763 n.15 ("The common law recognized that one did not

necessarily forfeit a privacy interest in matters made part of the public record, albeit the

privacy interest was diminished and another who obtained the facts from the public

record might be privileged to publish it.").

101 See, e.g., Paul P. v. Verniero, 170 F.3d 396, 404 (3d Cir. 1999) (finding

compelling state interest justified deprivation even of fundamental right to privacy); State

v. Mount, 78 P.3d 829, 842 (Mont. 2003) (upholding statutory sex offender registration

requirement under strict scrutiny); Doe v. Poritz, 662 A.2d 367, 4 12 (N.J. 1995) (using

form of strict scrutiny that required invasion of privacy to "be minimized by utilizing the

narrowest means which can be designed to achieve the public purpose" (quoting In re

(continued...)

-25- 7375

----------------------- Page 26-----------------------

persuasive the following observations of the New Jersey Supreme Court:

Government dissemination of information to which the public

merely has access through various sources eliminates the

costs, in time, effort, and expense, that members of the public

would incur in assembling the information themselves.

Those costs, however, may severely limit the extent to which

the information becomes a matter of public knowledge. The

[New Jersey] Notification Law therefore exposes various bits

of information that, although accessible to the public, may

remain obscure. Indeed, as in Rep orters Committee,[102] if the

information disclosed under the Notification Law were, in

fact, freely available, there would be no need for the law.[103]

The New Jersey court explained that "when the government assembles those diverse

pieces of information into a single package and disseminates that package to the public,"

101 (...continued)

Martin, 447 A.2d 1290, 1302 (N.J. 1982))). But cf . Vega v. Lantz, 596 F.3d 77, 82 (2d

Cir. 2010) (finding no deprivation of fundamental liberty interest when the stigmatizing

sex offender information was true); Doe v. Moore, 4 10 F.3d 1337, 1345 (11th Cir. 2005)

(applying rational basis, not strict scrutiny, because "a state's publication of truthful

information that is already available to the public does not infringe the fundamental

constitutional rights of liberty and privacy"); Peop le v. Cornelius, 82 1 N.E.2d 288, 304

(Ill. 2004) (holding that because internet provisions of sex offender statute did not

implicate a fundamental right, "strict scrutiny analysis does not apply"); Hy att v.

Commonwealth, 72 S.W.3d 566, 573-74 (Ky. 2002) (holding sex offender lacked

reasonable expectation of privacy in registration details because many details were

already in public domain); State v. Williams, 728 N.E.2d 342, 355-56 (Ohio 2000)

(noting right to privacy only applies to information not "readily available to the public"

and thus does not cover required registration information for sex offenders); Hendrix v.

Tay lor, 579 S.E.2d 320, 323-24 (S.C. 2003) (declining to apply strict scrutiny because

sex offense information was part of public record through registration in another state).

102 Rep orters Comm., 489 U.S. at 762-64.

103 Poritz, 662 A.2d at 4 11.

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----------------------- Page 27-----------------------

the government "thereby ensur[es] that a person cannot assume anonymity - in this

case, [by] preventing a person's criminal history from fading into obscurity and being

wholly forgotten."104

Internet publication of sex offender registration information potentially

inflicts grievous harms on sex offenders ranging from public scorn and ostracism to

harassment, to difficulty in finding and maintaining employment, to threats of violence

and actual violence. Our cases establish that the privacy clause protects against the

release of information that can result in such harms in other contexts,105 and it is

reasonable to expect that the privacy clause does so in the current context as well.

Further, the threats to personal privacy posed by government computer data compilations

like the ASORA registry were a central concern underlying the enactment of the privacy

clause in the Alaska constitution. For these reasons we conclude that a sex offender may

hold a legitimate and obj ectively reasonable privacy expectation that his conviction and

personal information will not be disseminated as it is under ASORA.106

People who have been convicted of serious crimes, including sex offenders,

have a hard time re-integrating into society after they have served their time. They

should be able to expect that the state will not engage in a program of continuous

publicity designed to remind the public of their past misdeeds where such a program will

make their re-integration harder, if not virtually impossible. Because this expectation is

104 Id.

105 See sup ra notes 85-88.

106 We also conclude that for reasons already stated the consequences of such

dissemination are important. Thus the requirement that privacy claims involve

substantial rather than minimal impacts in order to trigger strict scrutiny review is also

satisfied. See sup ra p. 20.

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reasonable, the right to privacy ensures that the state will not undertake such a program

except where there is a compelling need, and only if the program is narrowly tailored to

meet that need.107

107 The dissenting opinion concludes that a lower level of scrutiny should be

used for reasons that can be distilled into three categories.

First, the opinion reasons that because Doe might well still be in j ail if he

had committed his offense in Alaska rather than Virginia he should be treated as though

he is still a prisoner with expectations of privacy that are "almost completely overridden

by the need for prison security." Dissent at 44. Relatedly, even if he were only on

probation or parole he would still have "a diminished expectation of privacy." Dissent

at 45.

Second, the dissent notes that conviction information is a matter of public

record and the notoriety of a serious sex crime itself can result in "stigma and infamy."

Dissent at 45-46.

And third, the dissent argues that the State's interest in public safety makes

"a lower level of scrutiny . . . appropriate." Dissent at 47-48.

We disagree for the reasons that follow.

First, we believe that Doe's privacy rights must be evaluated based on his

actual status as a person who is neither a prisoner, parolee, nor probationer, rather than

based on the sentence he may have received if he had hypothetically committed his crime

in Alaska. The exigencies of incarceration require that prisoners be subj ect to continuous

surveillance and search at any time. "A right of privacy in traditional Fourth

Amendment terms is fundamentally incompatible with the close and continual

surveillance of inmates and their cells." Hudson v. Palmer, 468 U.S. 517, 527 (1984).

But those exigencies do not apply to a person who is not incarcerated. To impose the

privacy limitations required by incarceration on a person who is not incarcerated cannot

be justified by any accepted legal theory of which we are aware. Doing so would echo,

but be even less justified than, the now-rej ected "constructive custody" theory under

which a released offender on probation or parole was regarded as entitled to no more

rights than he would have if he had remained incarcerated. See Roman v. State, 570 P.2d

1238, 1239-42 (Alaska 1977) (holding that "we do not believe that a released offender

(continued...)

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----------------------- Page 29-----------------------

107 (...continued)

has voluntarily consented to all conditions of parole and we likewise rej ect the custody

rationale").

Our response concerning the privacy rights of a probationer or parolee is

similar. Warrantless searches of their persons or residences can be justified under

conditions of release that are directly related to their underlying crimes. Id. at 1243. To

that extent, they have a diminished expectation of privacy. But, as we have noted, "Any

justification for treating parolees differently from any other person must stem from their

special status. They are entitled to all rights accorded other persons except where valid

purposes of parole require restrictions." Id. at 1240. Doe lacks the special status of a

parolee or probationer. The suggestion that he should be treated as such because he

probably still would be on probation or parole if he had committed his crime in Alaska

cannot be squared with our case law. Moreover, parolees and probationers have rights

more restricted than those enj oyed by the general public only as to searches and other

intrusions that are "both consistent with the goal of rehabilitation and necessary for the

proper functioning of the parole system." Id. at 1242. The continuous publication of

personal and conviction information under ASORA goes well beyond these criteria and

therefore should be tested under a full - rather than restricted - privacy-rights model.

The dissenting opinion's second group of reasons for concluding that a

lower level of scrutiny should be employed is based on the fact that conviction records

are public and that a notorious sex crime naturally results in stigma and infamy. We

have already addressed the public records point at some length in this opinion. See sup ra

pp. 24-27. Put briefly, not all the information published under ASORA is public -

offender addresses and employment information most notably - and, as we recognized

in Doe 08, there is a significant distinction between retaining records of a conviction in

state files and maintaining an easy-to-browse compilation of information about sex

offenders on the internet. 189 P.3d 999, 1011 (Alaska 2008). As to the notoriety factor,

we think it is also entitled to little or no weight. Doe's crime was serious, but not

notorious, and most sex offenses and sex offenders are not remembered by the general

public for long periods of time. The sex offender registry serves as a durable reminder

to the public of an offender and his crimes in ways that are vastly different than the

public record or notoriety of a sex offense.

As to the third reason, the State's interest in public safety, we have also

(continued...)

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5. Compelling interest

The State argues that ASORA furthers a compelling state interest of

protecting the public. Relying on decisions from other jurisdictions that quote studies

showing that sex offenders "have a greater probability of recidivism than other

offenders" and "are much more likely than other offenders to commit additional sex

crimes,"108 the State argues that its "interest in protecting its citizens from a group of

persons who, according to studies, are far more likely to re-offend is not merely

legitimate but compelling." The need is even stronger, the State continues, "because of

the serious, long-term impact of sex offenses on victims," especially when the victims

are children. Although the State's cited studies have been widely questioned,109 Doe

107 (...continued)

already addressed this point in this opinion. See supra pp. 11-13. The State has an

undoubted and strong interest in ensuring public safety. This interest plays a critical part

in assessing Doe's claim because it is the countervailing interest against which Doe's

constitutional claim must be weighed. We recognize in Part IV(C)(5) of this opinion (see

inf ra pp. 30-32) that the State's interest is compelling and justifies a narrowly tailored

sex offender registration law. But under our method for analyzing privacy-based

constitutional claims, the asserted countervailing interest plays no role in determining

whether there is a legitimate expectation of privacy. See sup ra p. 20. That is step one

of the analysis. The strength and legitimacy of the countervailing interest is relevant in

the second step of the analysis, which determines whether the countervailing interest is

sufficiently strong to overcome the privacy-based constitutional claim that is subj ect to

such review.

108 Doe v. Pataki, 120 F.3d 1263, 1266 (2d Cir. 1997).

109 See, e.g., Joshua E. Montgomery, Fixing a Non-Existent Problem with an

Ineff ective Solution: Doe v. Snyder and Michigan 's Punitive Sex Off ender Registration

and Notif ication Laws, 51 AKRON L. REV. 537, 560-73 (2017) (describing how

recidivism rates for sex offenders are low compared to other types of criminals and that

registration does not reduce recidivism, and may actually increase it); Hal Arkowitz and

(continued...)

-30- 7375

----------------------- Page 31-----------------------

does not attempt any general refutation of the State's argument that ASORA furthers a

compelling interest in public safety.

The only argument Doe makes concerning the absence of a compelling

interest is that if an offender is not likely to commit a new sex offense, then there is not

a compelling state interest that requires registration. In support of this position, Doe cites

109 (...continued)

Scott O. Lilienfeld, Once a Sex Off ender, Always a Sex Off ender? May be Not., SCI. AM.

(Apr. 1, 2008), https://www.scientificamerican.com/article/misunderstood-crimes/

(noting that general public vastly overestimates sex offenders' recidivism rates); Roger

Przybylski, Adult Sex Off ender Recidivism, DEP 'T OF JUST., SEX OFFENDER

MANAGEMENT ASSESSMENT & PLANNING INITIATIVE, 107 (March 2017),

https://www.smart.gov/SOMAPI/pdfs/SOMAPI_Full%20Report.pdf, ("[R]ecidivism

remains a difficult concept to measure, especially in the context of sex offenders.").

Recently, for example, the Sixth Circuit Court of Appeals observed:

Intuitive as some may find this, the record before us provides

scant support for the proposition that SORA in fact

accomplishes its professed goals. The record below gives a

thorough accounting of the significant doubt cast by recent

empirical studies on the pronouncement in Smith that "the

risk of recidivism posed by sex offenders is frightening and

high." One study suggests that sex offenders (a category that

includes a great diversity of criminals, not just pedophiles)

are actually less likely to recidivate than other sorts of

criminals. Even more troubling is evidence in the record

supporting a finding that offense-based public registration

has, at best, no impact on recidivism. In fact, one statistical

analysis in the record concluded that laws such as SORA

actually increase the risk of recidivism, probably because

they exacerbate risk factors for recidivism by making it hard

for registrants to get and keep a j ob, find housing, and

reintegrate into their communities.

Does #1-5 v. Snyder, 834 F.3d 696, 704-05 (6th Cir. 2016) (emphasis in original)

(citations and alterations omitted).

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Doe 04's conclusion that "absent the likelihood Doe will commit new sex offenses, there

is no compelling government interest in requiring Doe to do the things ASORA

demands."110 We believe that this argument is best treated as a challenge to ASORA's

lack of narrow tailoring and we consider it in the next section of this opinion.

We accept the State's assertion that the publication of sex offender

information under ASORA is justified by a compelling state interest.

6. Less restrictive means

Having identified and weighed the rights involved in this case, we turn to

the question whether ASORA advances the State's compelling interest using the least

restrictive means available.

Doe argues, among other things, that ASORA does not meet the least

restrictive means because it does not permit a hearing by which a registrant can be

relieved of ASORA's requirements if he proves that he does not present a threat to the

public: ASORA "labels all registrants with a 'scarlet letter' of 'dangerous sex offender'

without any finding in that regard." He argues that ASORA is an "offense-based"

registration law rather than an "offender-based" one in which "the extent of public

notification, if any" is tied to "a sex offender's currently assessed dangerousness." Doe

contends that the offense-based approach is flawed because it sweeps too broadly and

includes those who are no longer dangerous: "In many cases, the offense is ancient, the

offender is rehabilitated and registration and notification harms registrants and infringes

upon cherished liberties without serving any remedial purpose."

In response the State argues that ASORA is narrowly tailored to accomplish

its public safety purposes. The State suggests that ASORA reflects a legislative

110 Doe 04, 92 P.3d 398, 4 12 (Alaska 2004).

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judgment that individuals - not courts or agencies - should decide what level of risk

is acceptable in a given situation: "The risk that a woman may tolerate when choosing

a person to date is quite different from the risk a fast food restaurant may tolerate when

hiring someone to clean . . . . The woman [] may choose to apply 'zero tolerance' while

the restaurant may be willing to assume more risk." The State also suggests that ASORA

reflects "a legislative judgment that the effects of [sex] crimes are so serious that no level

of risk is acceptable."

For the reasons that follow, we conclude that Doe has the better of the

argument. ASORA's coverage is excessive to the extent it applies to sex offenders who

do not present a danger of committing new sex offenses. We recognized this point in

Doe 04 where we observed that without "the likelihood [that the offender] will commit

new sex offenses, there is no compelling government interest in requiring" him to

comply with ASORA.111

In Doe 08 we recognized that ASORA imposed excessive burdens in

relation to its regulatory purposes. We stated:

It is significant that ASORA's scope is broad; it encompasses

a wide array of crimes that vary greatly in severity.

Moreover, ASORA provides no mechanism by which a

registered sex offender can petition the state or a court for

relief from the obligations of continued registration and

disclosure. "Offenders cannot shorten their registration or

notification period, even on the clearest determination of

rehabilitation or conclusive proof of phy sical

incapacitation."[112]

111 Id.

112 Doe 08, 189 P.3d at 1017 (quoting Smith v. Doe, 538 U.S. 84, 117 (2003)

(Ginsburg, J., dissenting)).

-33- 7375

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As a footnote to this statement we quoted Justice Ginsburg's criticism of ASORA:

"[T]he Act makes no provision whatever for the possibility of rehabilitation. . . ."113 We

recognized that some sex offenders can be rehabilitated and described the rehabilitation

of the offender in Doe 08:

Doe successfully completed a treatment program and was

granted early release from mandatory parole. A superior

court granted him legal custody of his minor daughter based

on its determination that he was successfully rehabilitated and

posed "a very little risk of re-offending."[114]

We continued, to illustrate ASORA's excessiveness: "Despite this evidence of

rehabilitation, ASORA requires Doe to register quarterly and requires the state to

publicly disseminate his personal information for the rest of his life."115 We thus found

that ASORA was excessive in relation to its regulatory purposes using the multi-part ex

post facto analysis because ASORA did not provide an avenue for relief from its

registration and disclosure requirements.116 We now find ASORA excessive and

violative of due process for the same reason. To pass muster under a least restrictive

means test, ASORA must accommodate the constitutional rights of sex offenders by

offering them the right to a hearing consistent with due process principles under which

they may attempt to prove that they are not likely to re-offend.

The courts of two other states have decided that offense-based registration

113 Id. at 1017 n.143 (second alteration in original) (quoting Smith, 538 U.S.

at 117 (Ginsburg, J., dissenting)).

114 Id. at 1017 (quoting Doe I v. Otte, 259 F.3d 979, 983 (9th Cir. 2001), rev 'd

sub nom. Smith, 538 U.S. at 92, 106).

115 Id.

116 Id.

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statutes are constitutionally deficient on due process grounds because they fail to offer

a sex offender an individualized hearing.

One such decision is Doe v. Attorney General.117 In that case the offender

was convicted of indecent assault and battery after soliciting sex from a person who

turned out to be an undercover police officer at a location reputed to be a place for

consensual sexual activity between men.118 The applicable registration law required the

offender to register as a sex offender and made registration information available to the

public.119 The Supreme Judicial Court of Massachusetts held that the registration act was

"unconstitutional as applied to the plaintiff in the absence of a right to a hearing and, if

the hearing is requested, to a determination concerning his threat, if any, to minors and

others for whose protection the act was passed."120 The court held that fundamental

fairness required this conclusion:

As to the public disclosure on request of sex offender

information, it is contrary to the principle of fundamental

fairness that underlies the concept of due process of law to

deny the plaintiff a hearing at which the evidence might show

that he is not a threat to children and other vulnerable persons

whom the act seeks to protect and that disclosure is not

needed when balanced against the public need to which the

sex offender act responded. Government action unreasonably

stigmatizing the plaintiff would violate the plaintiff's

117 686 N.E.2d 1007 (Mass. 1997).

118 Id. at 1009.

119 Id. at 1012; see former Mass. Gen. Laws ch. 6, §§ 178C-179O (1996).

120 Attorney Gen., 686 N.E.2d at 1014.

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constitutionally protected rights.[121]

The Massachusetts court characterized this result as a failure of procedural

due process.122 However, we characterize the problem as one of substantive due process

because the statute's flaw was that it ruled out the need for a hearing. To use the terms

of the opinion in Connecticut Dep artment of Public Saf ety v. Doe, the claim appears to

be "a substantive challenge to [the] statute 'recast in "procedural due process

terms." ' "123 Regardless of the terms used, the Massachusetts court found the statute to

be unconstitutional because it did not provide the offender with the right to a hearing

concerning his threat to the public, just as we do in the present opinion.

Another decision is State v. Bani, in which the Supreme Court of Hawaii

held that the public notification requirements of that state's registration act were

unconstitutional because they did not offer a sex offender a meaningful opportunity to

argue "that he or she does not represent a threat to the community and that public

notification is not necessary."124 The court reasoned that the offender had

constitutionally protected liberty interests that were at risk of erroneous deprivation in

the absence of an individualized hearing:125

121 Id. (citations omitted).

122 Id. at 1013.

123 538 U.S. 1, 8 (2003) (quoting Reno v. Flores, 507 U.S. 292, 308 (1993)).

124 36 P.3d 1255, 1268 (Haw. 2001). As in the Massachusetts case discussed

above, the Hawaii court characterized the due process failure as procedural. We consider

it to be substantive for the same reasons given concerning the Massachusetts case.

125 Subsequent to the publication of the Bani decision, the Hawaii legislature

amended the section of its sex offender registration and notification statute that provided

(continued...)

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Undoubtedly, Bani's interest in the protected "liberty"

denied him by [the statute] is great. As discussed at length

above, the public notification provisions adversely affect a

person's interests in reputation, employment and earning

opportunities, housing, and personal safety.

. . . .

The current procedures under the public notification

provisions . . . are extremely broad and contain absolutely no

safeguards to prevent erroneous deprivations of a registrant's

liberty interests. . . . Surely, not all offenders present a

significant danger to the public. Yet [the statute] currently

deprives all offenders - including those who present no

danger to the community and are not likely to recidivate -

of these interests automatically , for life. Therefore, persons

convicted of crimes listed under [the statute] who do not pose

a significant danger to the community are at substantial risk

of being erroneously deprived of their liberty interest.[126]

Another recent case has also determined that a state registration act is

excessive and unconstitutional as applied to offenders who are not likely to recidivate.127

We have concluded that ASORA furthers a compelling state interest in

125 (...continued)

"[a]ccess to registration information" to include a hearing that provided a sex offender

with the opportunity to present evidence to show that "the offender does not represent

a threat to the community and that public release of relevant information is not

necessary." State v. Guidry , 96 P.3d 242, 244 (Haw. 2004) (quoting former Haw. Rev.

Stat. § 846E-3(d) (Supp. 2003)).

126 Bani, 36 P.3d at 1267 (emphasis in original).

127 See Millard v. Rankin, 265 F. Supp. 3d 12 11, 1232-33, 1235 (D. Colo.

2017) (holding that Colorado act imposes cruel and unusual punishment and denies

procedural and substantive due process to plaintiffs who do not pose material risk of

recidivism).

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protecting the public from sex offenders who "pose a high risk of reoffending after

release from custody."128 But ASORA is both too broad and arbitrary when it includes

offenders who are not dangerous. Since they pose no special risk to the public, their

protected liberty interests plainly outweigh any public safety interests that might be

furthered by requiring them to register.

D. Remedy

ASORA is overbroad because it imposes its requirements on all persons

convicted of designated offenses without affording them a hearing at which they might

show that they are not dangerous. It therefore fails the strict scrutiny test under which

statutes that infringe on fundamental constitutional rights may be justified. We now

address the question of what remedy should follow from this conclusion.

One possible remedy would be for this court to declare ASORA invalid.

The legislature would almost certainly re-enact a modified ASORA that is narrower in

scope, including providing for hearings for those who claim that they do not pose a

likelihood of reoffending. The amended Act could prescribe useful details concerning

such hearings including whether they should be conducted before an agency or the

superior court, the phrasing of the precise questions to be decided, and the standard of

proof to be used.

But there are also serious drawbacks to invalidating ASORA. The structure

of ASORA would be temporarily taken down. All sex offenders would be exempt from

registration and re-registration requirements, and the internet registry would go dark.

The public safety benefits of ASORA would be lost until the Act was replaced. Further,

when the replacement Act became effective, there would be new and potentially complex

128 Ch. 4 1, § 1, SLA 1994. See sup ra Part IV(C)(5).

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questions of the permissible retroactivity of the new Act. In our view, these negative

factors counsel against holding ASORA to be invalid.

The alternative we choose is to permit Doe to file a civil action in the

superior court in which he will be permitted to attempt to prove that he no longer poses

a risk to the public that justifies continued registration.129 If he prevails, he should be

relieved of the requirements of registration. If he does not, he must comply with the Act.

However, after a reasonable time, he may be permitted to file a new complaint, again

seeking relief from the requirements of the Act based on a showing of changed

circumstances.

The hearing remedy narrows ASORA and saves it from a ruling declaring

it to be unconstitutional on the grounds urged in this case.130 Our decision requiring an

individualized risk-assessment hearing is based on the judicial power. We have

employed this authority in a number of cases in which we mandated a hearing when none

129 Alternatively, he may proceed by amending the complaint in the current

proceeding.

130 We note that the Supreme Court of New Hampshire recently imposed a

similar hearing requirement to save that state's act from unconstitutionality as applied

to an ex post facto claim. See Doe v. State, 111 A.3d 1077, 1102 (N.H. 2015).

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was required by statute,131 or was actually prohibited by statute132 where constitutionally

protected interests were threatened by state action.

We have received no briefing as to the particular details of the hearing

required by our decision. These issues should be decided by the superior court when the

131 See Nichols v. Eckert, 504 P.2d 1359, 1362-63 (Alaska 1973). In this case

non-tenured teachers were dismissed in the middle of the school year. Id. at 1360. The

relevant statute did not provide for a hearing. Noting "[t]he stigma which attaches to a

discharge for incompetence," we held that constitutional due process requirements

necessitated a hearing, even though non-tenured teachers were not entitled to one by

statute. Id. at 1364; see also Frontier Saloon Inc. v. Alcoholic Beverage Control Bd.,

524 P.2d 657, 661 (Alaska 1974) (holding that although a statute did not require a

hearing before the suspension of a liquor license, a hearing was required by due process).

132 K&L Distribs., Inc. v. Murkowski, 486 P.2d 351, 354 (Alaska 1971). In this

case we held that a competitor was entitled to judicial review of a tax exemption decision

made by the Commissioner of Economic Development even though the applicable statute

provided that the Commissioner's decision was final and not subj ect to judicial review:

It is the constitutionally vested duty of this court to assure

that administrative action complies with the laws of Alaska.

We would not be able to carry out this duty to protect the

citizens of this state in the exercise of their rights if we were

unable to review the actions of administrative agencies

simply because the legislature chose to exempt their decisions

from judicial review. The legislative statement of finality is

one which we will honor to the extent that it accords with

constitutional guarantees. But if the administrative action is

questioned as violating, for example, the due process clause,

we will not hesitate to review the propriety of the action to

the extent that constitutional standards may require.

Id. at 357.

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hearing is requested.133 A maj ority of states now provide for individualized risk

assessment hearings under which registrants and potential registrants can be relieved of

registration obligations.134 The superior court, aided by the briefing of the parties, may

find that the laws of one or more states providing for such proceedings supply an apt

model.135 In addition, various protocols for risk assessment have been developed for use

in connection with sex offender registration and de-registration proceedings as well as

for sentencing and supervisory purposes.136 Some of these protocols rely only on "static

133 The legislature may find it appropriate to amend ASORA in order to

prescribe conditions under which relief from registration may be granted.

134 See Wayne A. Logan, Database Infam ia: Exit f rom the Sex Off ender

Registries, 2015 WIS. L. REV. 219, 227 (2015).

135 As already noted, the Supreme Court of New Hampshire imposed an

individualized risk assessment hearing requirement to save New Hampshire's registration

act from unconstitutionality on ex post facto grounds. Doe, 111 A.3d at 1102; see sup ra

note 130. After that decision, the New Hampshire legislature amended the act to define

the circumstances under which a court could relieve an offender from the duty to register.

These include circumstances where the offender "(1) 'has not been convicted of any

subsequent offense requiring registration'; (2) 'has successfully completed any period

of supervised release, probation, or parole'; (3) 'has successfully completed an

appropriate sex offender treatment program'; and (4) 'has demonstrated that he or she

is no longer a danger to the public and no longer poses a risk sufficient to justify

continued registration.' " See White v. State, 195 A.3d 108, 109-10 (N.H. 2018) (quoting

N.H. Rev. Stat. Ann. § 651-B:6, V(c)). We stress that this is simply one of any number

of potential models that may provide guidance to the superior court after briefing and

argument.

136 See Mary K. Huffman, Moral Panic and the Politics of Fear: The Dubious

Logic Underly ing Sex Offe nder Registration Statutes and Prop osals f or Restoring

Measures of Judicial Discretion to Sex Off ender Management, 4 VA. J. CRIM. L. 24 1,

269-74 (2016).

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factors"137 while others rely on a combination of static and dynamic factors.138 Guided

by expert testimony, the court on remand may find one or more of these protocols to be

valuable.

V. CONCLUSION

The superior court correctly concluded that Doe must register under

ASORA. ASORA has effects that are both punitive and regulatory in nature. The

former prevent retroactive application of the act under the ex post facto clause of the

Alaska Constitution, but they do not preclude imposing registration duties on out-of-state

offenders who are present in the state.

The superior court also correctly recognized that registration may seriously

affect Doe's liberty interests. But the court did not strike a proper balance between

Doe's liberty interests and ASORA's public safety purposes when it concluded that

ASORA may be applied to Doe without affording him the right to a hearing to show that

he does not pose a risk to the public sufficient to require continued registration. Doe's

affected liberty interests are fundamental and thus protected from infringement by state

action except under a narrowly drawn statute reasonably designed to achieve a

compelling state interest. If Doe can show at a hearing that he does not pose a risk

requiring registration, then there is no compelling reason requiring him to register, and

137 "Static factors represent historical information not subj ect to change, such

as prior criminal record, previous violations of community supervision, and age at first

offense." Id. at 271.

138 "Dynamic factors present as 'those characteristics, circumstances, and

attitudes that can change throughout one's life.' Changeable variables include substance

abuse, attitude, maturity, social support, and self-management practices." Id. (quoting

CTR. FOR SEX OFFENDER MGMT., RECIDIVISM OF SEX OFFENDERS 5 (May 2001),

https://www.csom.org/pubs/recidsexof.pdf).

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the fact that ASORA does not provide for such a hearing means that the statute is

unnecessarily broad.

The flaw in ASORA identified in this case is that it does not provide Doe

with an opportunity to be heard. This can best be cured by providing him with such an

opportunity. For these reasons the judgment of the superior court is AFFIRMED IN

PART, REVERSED IN PART, and REMANDED for further proceedings consistent

with this opinion.

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BOLGER, Chief Justice, with whom STOWERS, Justice, j oins, dissenting.

The court's opinion applies strict scrutiny to the sex offender registration

statute based on the conclusion that sex offenders have a legitimate expectation of

privacy in the information disclosed by registration. To reach this conclusion, the

opinion relies on cases involving information that is easily recognized as private or

protected: the medical condition of a medical marijuana user, a police officer's

personnel file, the personal details of a political advertiser, and the professional clients

of a public official.1

But John Doe is in a different situation. Nineteen years ago, Doe was

convicted of aggravated sexual battery in Virginia. The Alaska Department of Public

Safety determined that this offense had essentially the same elements as the crime of first

degree sexual assault under Alaska law. In Alaska this offense now generally carries a

presumptive term of 20 to 30 years' imprisonment for a first offender. In addition to

imprisonment, the current Alaska statute also requires probation supervision for a

minimum of 15 years.

These potential penalties establish that such sex offenders have a reduced

expectation of privacy based on their convictions of serious felony offenses. During the

term of imprisonment, an offender's expectations of privacy are almost completely

overridden by the need for prison security. Even after imprisonment, "a convicted and

1 Op. at 2 1-22 nn. 89-93.

2 AS 12.55.125(i)(1)(A)(ii).

3 AS 12.55.125(q).

4 Hudson v. Palmer, 468 U.S. 517, 526 (1984) (stating that "society is not

prepared to recognize as legitimate any subj ective expectation of privacy that a prisoner

(continued...)

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released offender has a diminished expectation of privacy" that allows the State to

impose reasonable conditions on probation and parole. Following the same reasoning,

a number of courts have held that a sex offender has, as a result of his conviction, a

reduced expectation of privacy in the information disclosed in a sex-offender registry.

For one thing, a sex offender has a reduced expectation of privacy with

respect to his conviction information because such information is a matter of public

record. Moreover, an offender convicted of a serious sex offense may have a reduced

4 (...continued)

might have in his prison cell"); McGinnis v. Stevens, 543 P.2d 1221, 1237-38 (Alaska

1975) (concluding that prison inmates have no reasonable expectation of marital privacy

subsuming conjugal visitation).

5 Sp rague v. State, 590 P.2d 4 10, 4 17 (Alaska 1979) (citing Roman v. State,

570 P.2d 1235, 1242-43 (Alaska 1977)).

6 See Peop le v. Jeha, 114 Cal. Rptr. 3d 711, 718 (Cal. App. 2010) ("By their

commissions of a crime and subsequent convictions, persons such as appellant have

forfeited any legitimate expectation of privacy in their identities."); State v. Brooks, 289

P.3d 105, 108 (Mont. 2012) ("As a result of Brooks' conviction of felony arson, he has

a diminished privacy interest in the personal information required at his registration.");

State v. Bowditch, 700 S.E.2d 1, 11 (N.C. 2010) ("[I]t is beyond dispute that convicted

felons do not enj oy the same measure of constitutional protections, including the

expectation of privacy under the Fourth Amendment, as do citizens who have not been

convicted of a felony."); Commonwealth v. Howe, 842 A.2d 436, 446-47 (Pa. Super.

2004) ("[P]ersons found to have committed [sex offenses] have a reduced expectation

of privacy because of the public's interest in public safety and the effective operation of

government.").

7 See Patterson v. State, 985 P.2d 1007, 1016 (Alaska App. 1999) ("The

biographical information about a sex offender that the public can access under ASORA

is information that is in large part already in the public domain."), overruled on other

grounds by Doe v. State, Dep 't of Pub. Saf ety , 92 P.3d 398 (Alaska 2004); Peop le v.

Cornelius, 82 1 N.E.2d 288, 300 (Ill. 2004) ("Defendant engaged in conduct that lowered

(continued...)

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expectation of privacy due to the notoriety of the crime. At least for the most serious

sex crimes, a person committing such a crime arguably should realize that public

dissemination of the details of his crime, resulting in stigma and infamy, is a possibility

if caught. Accordingly several state legislatures have made findings that sex offenders

have a reduced expectation of privacy.9

In addition, for a convicted sex offender, the interest in privacy must be

considered in relation to other legitimate constitutional concerns. The Alaska

Constitution requires "criminal administration" to be based on "the need for protecting

the public, community condemnation of the offender, the rights of victims of crimes,

7 (...continued)

the privacy bar as his acts spawned a criminal prosecution culminating in a public record

that contains the challenged information." (alterations omitted)).

8 State v. Druktenis, 86 P.3d 1050, 1078 (N.M. App. 2004) ("One convicted

of a heinous sex offense starts a quest for constitutional protection from a much different

and clearly less favorable position than those who to date have obtained privacy

protection in the United States Supreme Court.").

9 See, e.g., Ala. Code § 15-20A-2(5) (2018) ("Sex offenders, due to the

nature of their offenses, have a reduced expectation of privacy."); La. Stat. Ann.

§ 15:540(A) (2018) ("Persons found to have committed a sex offense or a crime against

a victim who is a minor have a reduced expectation of privacy because of the public's

interest in public safety and in the effective operation of government."); Miss. Code.

Ann. § 45-33-2 1 (2018) ("Persons found to have committed a sex offense have a reduced

expectation of privacy because of the public's interest in safety and in the effective

operation of government."); Ohio Rev. Code Ann. § 2950.02(5) (2019) ("A person who

is found to be a sex offender or a child-victim offender has a reduced expectation of

privacy because of the public's interest in public safety and in the effective operation of

government."); W. Va. Code Ann. § 15-12-1a(c) (2018) ("The Legislature also finds and

declares that persons required to register as sex offenders pursuant to this article have a

reduced expectation of privacy because of the state's interest in public safety.").

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restitution from the offender, and the principle of reformation."10 The components of a

criminal sentence "must be reasonably related to at least one of these constitutional

principles."11

One of the constitutional principles implicated here is the State's interest

in public safety. The Alaska Legislature relied on this principle when it enacted the

registration statute, concluding that "the privacy interests of persons convicted of sex

offenses are less important than the government's interest in public safety."12 Likewise

most courts that have considered the question have agreed that sex offender registration

is reasonably related to the legitimate state goal of protecting the public from sex

offenders.13

Considering the limitations on a sex offender's privacy interests and the

State's constitutionally protected interest in public safety, a lower level of scrutiny is

10 Alaska Const. art. I, § 12.

11 State v. Ranstead, 42 1 P.3d 15, 20 (Alaska 2018); see also Forster v. State,

236 P.3d 1157, 1174 (Alaska App. 2010).

12 Ch. 4 1, § 1(3), SLA 1994.

13 See, e.g., Doe v. Cuomo, 755 F.3d 105, 114 (6th Cir. 2014) ("Given the

combination of the nature of the information released . . . and the State's strong interest

in releasing it, Doe has not supported a claim for the violation of any constitutional right

to privacy. Nor, as already discussed, is there any real question that [the registration

statute's] requirements are rationally related to the aim of protecting public safety."

(internal citation omitted)); cf . Doe v. Dep 't of Pub. Saf ety & Corr. Servs., 971 A.2d 975,

985 (Md. Spec. App. 2009) ("[T]he legislature's decision to use a prior conviction as the

sole basis for deciding whether someone must be included in the registry, regardless of

whether there is any specific evidence of sexual dangerousness, is not irrational.").

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appropriate. And under such a review, the State's registration is a fair and reasonable

tool to promote the State's interest.

The court's opinion also concludes that there is a less restrictive alternative

to the registration statute because it does not allow an individual offender to have a

hearing to show he is not dangerous. As a remedy, the court provides each sex offender

with the right to a hearing to prove "that he no longer poses a risk to the public that

justifies continued registration."14 It thus leaves open a serious policy question: What

quality of risk to the public is sufficient to justify registration? This determination

necessarily requires analysis of important subsidiary issues: What is an acceptable risk

of recidivism? What crimes would constitute a repeat offense? Over what period of time

should the risk be assessed? Should the nature and degree of the crime affect the

acceptability of the risk? How does a small risk of a heinous offense compare to a

moderate risk of a lesser offense? How does registration affect the likelihood of

recidivism? What kinds of evidence are persuasive to resolve these questions?

It is not surprising that the court's opinion refers the superior court to

legislative solutions to these policy questions, concluding that the court "may find that

the laws of one or more states providing for such proceedings supply an apt model."15

The opinion is thus asking the superior court to perform what is essentially a legislative

function. But I believe that the Alaska Legislature has adequately answered these

questions by tying both the registration requirement and the term of registration to facts

that have already been admitted or established. Thus I believe the legislature reasonably

concluded that John Doe's conviction of a serious sex offense is sufficient to justify

14 Op. at 39.

15 Op. at 4 1.

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registration.

Finally the court's opinion finds that the entire registration statute is

unconstitutional absent a hearing in which an offender may demonstrate that they are not

dangerous. As the State identified, however, Doe's general grievance addresses two

distinct provisions of the law: AS 12.63.010-.020's sex offender registration

requirement and AS 18.65.087's public disclosure requirement. Yet the injuries to Doe's

right to privacy follow only from disclosure. It is well-established that "[t]he

unconstitutionality of a part of an act does not necessarily defeat or affect the validity of

its remaining provisions."16 The registration requirements do not harm Doe's privacy

interest, and it is evident that the public disclosure provision can be severed from the

remainder of the statute. So I would limit the constitutional need for a hearing to only

the State's public disclosure of aggregated information and not the statute's registration

requirement.

16 Egan v. Hammond, 502 P.2d 856, 871 (Alaska 1972) (quoting Champ lin

Ref ining Co. v. Corp . Comm 'n, 286 U.S. 2 10, 234 (1932)); see also Alaskans f or a

Common Language, Inc. v. Kritz, 170 P.3d 183, 196 n.54 (Alaska 2007) ("If a statute is

susceptible of no reasonable construction avoiding constitutional problems, this court is

under a duty to nullify the statute or, if possible, the particular provision found offensive

to the constitution.").

-49- 7375

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