Sixth Circuit panel overturns ruling that Ohio's lifetime sex-offender registration rules violate procedural due process rights

A panel f the Sixth Circuit handed down an interest opinion today in Doe v. DeWine, No. 17-3857 (6th Cir. Dec. 11, 2018) (available here).  Here is how it gets started and some key passages:

Defendants-Appellants Michael DeWine, Ohio Attorney General, and Tom Stickrath, Superintendent of the Ohio Bureau of Criminal Investigation, appeal the district-court judgment declaring that Ohio’s sexual-offender registration and notification laws violate Plaintiff-Appellee Jane Doe’s procedural due process rights because they subject her to lifetime registration requirements, which rest on an implicit finding that she remains likely to reoffend, without an opportunity to rebut that finding.  We REVERSE....

The statute unambiguously provides that the sentencing judge’s determination that a person convicted of a sexually oriented offense “is likely to engage in the future in one or more sexually oriented offenses” is “permanent and continues in effect until the offender’s death.”  O.R.C § 2950.09(D)(2) (2003).  In eliminating an offender’s right to petition the sentencing court for a reclassification hearing and declaring the classification permanent, the Ohio legislature made clear that the initial “classification or adjudication” could never “be removed or terminated,” id., and that an offender’s duties and restrictions stemming from that classification could not “be removed or terminated” either, id. § 2950.07(B)(1).

Thus, Doe’s current sexual-predator classification is based on her likelihood of reoffending as of the time of the classification hearing because under Ohio’s scheme, that assessment operated to require that her name be placed in the sex-offender registry permanently.  As in DPS, no fact other than that assessment is relevant to Doe’s present classification.  538 U.S. at 7.  In other words, Doe’s duty to register and the attendant restrictions stem not from her current dangerousness, but from the assessment of her dangerousness at her classification hearing, which resulted in a permanent sexual-predator classification.  Therefore, she has not been deprived of constitutionally guaranteed process because “due process does not require the opportunity to prove a fact that is not material to the State’s statutory scheme.” Id. at 4....

In sum, because Doe’s registration requirement stems from the determination of her likelihood of reoffending at the time of her classification hearing and is not dependent on her current dangerousness, she has no procedural due process right to a reclassification hearing.  Further, the wisdom of Ohio’s decision to make the determination of a sexual offender’s future dangerousness permanent is not subject to a procedural due process challenge.