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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. John Doe v. State of Alaska, Department of Public Safety (6/14/2019) sp-7375

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

        Notice:   This op inion  is subj ect  to correction bef ore p ublication  in  the PA CIFI C REPORTER.  

        Readers are requested to bring errors to the attention of  the Clerk of  the App ellate Courts, 

        303 K Street, Anchorage, Alaska 99501, p hone  (907)  264-0608, f ax  (907)  264-0878, email 

        corrections@akcourts.us. 



                 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). 


----------------------- Page 2-----------------------

I.      INTRODUCTION 



                This appeal presents two questions concerning the Alaska Sexual Offender 



                                  1 

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 



                                                                                                        2 

                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 



                                                                                                        3 

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 



register quarterly, for life.  DPS noted that Doe's Virginia conviction "has essentially the 



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).   



                                                   -2-                                               7375 


----------------------- Page 3-----------------------

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 



          4 

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)). 



                                                 -3-                                              7375 


----------------------- Page 4-----------------------

           5 

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



                               6 

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 



                                                                                                        14 

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). 



                                                      -4-                                                  7375 


----------------------- Page 5-----------------------

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



                                                   18 

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- 



register  and  update  their  information:  those  convicted  of  multiple  or  aggravated  sex 

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 



     23 

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. 



                                                    -5-                                                 7375 


----------------------- Page 6-----------------------

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). 



                                                -6-                                            7375 


----------------------- Page 7-----------------------

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 



                                      33 

physically present in the state.           



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



                                                                             34 

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 



                                                  35 

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).   



                                                    -7-                                                 7375 


----------------------- Page 8-----------------------

                 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, 



                                       38 

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



                                                                                                            39 

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 



                                                                                                      41 

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."). 



                                                     -8-                                                  7375 


----------------------- Page 9-----------------------

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). 



                                               -9-                                            7375 


----------------------- Page 10-----------------------

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. 



                                              -10-                                          7375 


----------------------- Page 11-----------------------

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). 



                                               -11-                                           7375 


----------------------- Page 12-----------------------

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. 



                                                -12-                                             7375 


----------------------- Page 13-----------------------

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 



                             56 

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. 



                                                  -13-                                                7375 


----------------------- Page 14-----------------------

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." 



                                               -14-                                           7375 


----------------------- Page 15-----------------------

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)).  



                                               -15-                                           7375 


----------------------- Page 16-----------------------

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.  



                                              -16-                                          7375 


----------------------- Page 17-----------------------

                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 



        70 

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). 



                                                  -17-                                                7375 


----------------------- Page 18-----------------------

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 



                                                        74 

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)).  



                                                   -18-                                                 7375 


----------------------- Page 19-----------------------

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). 



                                               -19-                                           7375 


----------------------- Page 20-----------------------

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 



                                                                                          81 

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. 



                                                  -20-                                                7375 


----------------------- Page 21-----------------------

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



                      84 

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 



                                                                                   89 

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 


----------------------- Page 22-----------------------

                                                                          90 

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 



           93 

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...) 



                                                    -22-                                                  7375 


----------------------- Page 23-----------------------

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). 



                                                -24-                                             7375 


----------------------- Page 25-----------------------

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. 



                                               -26-                                           7375 


----------------------- 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. 



                                                    -27-                                                 7375 


----------------------- Page 28-----------------------

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...) 



                                             -28-                                          7375 


----------------------- 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...) 



                                                  -29-                                              7375 


----------------------- Page 30-----------------------

               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).   



                                                -31-                                            7375 


----------------------- Page 32-----------------------

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).   



                                               -32-                                           7375 


----------------------- Page 33-----------------------

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 


----------------------- Page 34-----------------------

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. 



                                               -34-                                            7375 


----------------------- Page 35-----------------------

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. 



                                               -35-                                            7375 


----------------------- Page 36-----------------------

                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...) 



                                                -36-                                             7375 


----------------------- Page 37-----------------------

                         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). 



                                                    -37-                                                 7375 


----------------------- Page 38-----------------------

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). 



                                               -38-                                           7375 


----------------------- Page 39-----------------------

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). 



                                                -39-                                             7375 


----------------------- Page 40-----------------------

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.   



                                               -40-                                           7375 


----------------------- Page 41-----------------------

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). 



                                                -4 1-                                           7375 


----------------------- Page 42-----------------------

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).  



                                              -42-                                          7375 


----------------------- Page 43-----------------------

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.   



                                              -43-                                           7375 


----------------------- Page 44-----------------------

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 



                                                                                          2 

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 



                            3 

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 



                                                      4 

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...) 



                                                    -44-                                                  7375 


----------------------- Page 45-----------------------

released  offender  has  a  diminished  expectation  of  privacy"  that  allows  the  State  to 



                                                                    5 

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 



                                                                                                            6 

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 



         7 

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...) 



                                                    -45-                                                 7375 


----------------------- Page 46-----------------------

                                                                      8 

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."). 



                                                   -46-                                                 7375 


----------------------- Page 47-----------------------

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."). 



                                               -47-                                            7375 


----------------------- Page 48-----------------------

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. 



                                                 -48-                                             7375 


----------------------- Page 49-----------------------

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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