Jane Doe v. Michael DeWine , 910 F.3d 842 ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0265p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JANE DOE, ┐
Plaintiff-Appellee, │
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v. > No. 17-3857
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MICHAEL DEWINE, Ohio Attorney General, and TOM │
STICKRATH, Superintendent of the Ohio Bureau of │
Criminal Investigation, in their official capacities, │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:12-cv-00846—Susan J. Dlott, District Judge.
Argued: July 26, 2018
Decided and Filed: December 11, 2018
Before: WHITE, DONALD, and LARSEN, Circuit Judges.
_________________
COUNSEL
ARGUED: Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellants. Alexandra Naiman, OHIO JUSTICE & POLICY CENTER,
Cincinnati, Ohio, for Appellee. ON BRIEF: Michael J. Hendershot, Eric E. Murphy, Stephen
P. Carney, Thomas E. Madden, Mindy Worly, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellants. Alexandra Naiman, David A. Singleton, OHIO
JUSTICE & POLICY CENTER, Cincinnati, Ohio, for Appellee.
No. 17-3857 Doe v. DeWine, et al. Page 2
_________________
OPINION
_________________
HELENE N. WHITE, Circuit Judge. 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.
I. BACKGROUND
In 2006, Doe pleaded guilty to unlawful sexual conduct with a minor, in violation of
Ohio Rev. Code (“O.R.C.”) § 2907.04(A) (2000). She was sentenced to one year of confinement
and five years of probation. At the time, Ohio’s Megan’s Law,1 id. § 2950 et seq. (1996), which
governed the classification, registration, and community-notification requirements for Ohio sex
offenders, required the sentencing court to determine whether a person convicted of a sexually
oriented offense should be classified as a “sexual predator,” defined as “a person who . . . is
likely to engage in the future in one or more sexually oriented offenses.” Id. § 2950.01(E)(1).
An offender so classified is subject to burdensome housing restrictions and registration and
community-notification requirements. See id. §§ 2950.01(G), (E); 2950.07(B). Classification
was based on an individualized evaluation of multiple factors set forth in § 2950.09(B)(3),
conducted in light of expert-witness testimony and other evidence introduced at the classification
hearing. Id. § 2950.09(B)(2).
The sentencing court classified Doe as a sexual predator, and that classification was
affirmed on appeal. As a sexual predator, Doe is required to register with the local sheriff and
1In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender
Registration Act—more commonly known as the federal Megan’s Law after a similar law enacted in New Jersey—
which required states to adopt registration and community-notification requirements for sex offenders or risk losing
federal funds. 42 U.S.C. § 14071. Ohio enacted its own Megan’s Law in 1996.
No. 17-3857 Doe v. DeWine, et al. Page 3
provide her name and any aliases, social-security number, date of birth, current address, name
and address of employer, name and address of school, locations where her vehicles are regularly
parked, license-plate numbers, driver’s license number, professional or occupational license
numbers, email addresses, internet identifiers, and telephone numbers. Id. § 2950.04(C) (2007).
She is additionally required to provide written notice of any changes to this information, id.
§ 2950.05 (1996), and verify, in person, the current address of her residence, school, and place of
employment with the sheriff every ninety days. Id. §§ 2950.06(B)(1)(a) (2003); 2950.06(C)(1)
(2003). And, because of her sexual-predator designation, Doe must satisfy these requirements
for the rest of her life. Id. § 2950.07(B)(1) (2003). Failure to do so is punishable as a felony. Id.
§ 2950.99(A)(1)(a)(ii) (2011).
Doe is also subject to community-notification requirements. Id. § 2950.11 (2003). Local
sheriffs and the Ohio Attorney General are required to disseminate Doe’s registration
information to the public through an internet sex-offender database. Id. §§ 2950.081 (2003);
2950.14(D) (2003); 2950.13(1), (11), (13) (2006). Additionally, Doe may not reside within one-
thousand feet of any school, id. § 2950.034(A) (2007), and because she is subject to a lifetime-
registration requirement under § 2950.09(D)(2) (2003), federal regulations bar her from living in
federally subsidized housing. 24 C.F.R. §§ 960.204(a)(4), 982.553(a)(2)(i).
For a period of time before Doe’s offense, persons classified as sexual predators had a
statutory right to petition the sentencing court for a hearing to reassess their likelihood of
reoffending and change their classification. O.R.C. § 2950.09(D)(1) (1996).2 However, the
Ohio legislature eliminated that right in 2003. The Ohio sexual-offender registration and
notification law applicable to Doe stated that “[i]n no case shall the lifetime duty to comply . . .
be removed or terminated.” Id. § 2950.07(B)(1) (2003). It further stated that “the classification
or adjudication of the offender as a sexual predator is permanent and continues in effect until the
2Such offenders could request a hearing one year “after release from imprisonment, prison term, or other
confinement by discharge, parole, judicial release, or any other final release,” and again every five years if denied
reclassification. O.R.C. § 2950.09(D)(1)(a), (b) (1996).
No. 17-3857 Doe v. DeWine, et al. Page 4
offender’s death and in no case shall the classification or adjudication be removed or
terminated.” Id. § 2950.09(D)(2).3
II. PROCEDURAL HISTORY
In 2012, Doe filed this 42 U.S.C. § 1983 action against the Ohio Attorney General
(Attorney General), the Superintendent of the Ohio Bureau of Criminal Investigation
(Superintendent), and the Sheriff of Hamilton County, Ohio (Sheriff), seeking a declaration that
O.R.C. § 2950.07(B)(1) (2003) is unconstitutional because it prevents her from obtaining a
hearing to demonstrate that she is no longer “likely to engage in the future in one or more
sexually oriented offenses,” id. § 2950.01(E), thus violating her procedural and substantive due
process rights under the Fourteenth Amendment to the U.S. Constitution. Doe also seeks “an
Order that a hearing be scheduled in the sentencing court to determine whether . . . Doe is
currently dangerous.” (R. 1, PID 9.)
In granting in part and denying in part the parties’ cross-motions for summary judgment,
the district court first rejected Defendants’ arguments that Doe lacks standing to pursue her claim
and that Defendants are entitled to Eleventh Amendment immunity.4 The district court then
rejected Doe’s substantive due process claim, concluding that Doe “has not established that
being subject to Ohio’s sex offender registration and notification provisions violates a
3In 2007, Ohio adopted the federally mandated Adam Walsh Act (“AWA”), which replaced the
discretionary, future-risk-based assessment of an offender’s classification under Megan’s Law with a
nondiscretionary, conviction-based classification system. The AWA adopted a classification system based solely on
the crime of conviction, not the offender’s likelihood to re-offend. O.R.C. § 2950.01(E), (F), (G) (2008). The AWA
also required that sex offenders who had been classified under the old system be reclassified under the AWA.
However, the Ohio Supreme Court struck the reclassification scheme as unconstitutional because it granted the
executive the power to reopen judicially made classifications in violation of the principle of separation of powers.
State v. Bodyke, 933 N.E.2d 753 (Ohio 2010). The Ohio Supreme Court also held that retroactive application of the
AWA to offenders convicted before its enactment violates the state constitution’s prohibition against retroactive
laws. State v. Williams, 952 N.E.2d 1108 (Ohio 2012). Thus, the AWA does not affect Doe’s classification.
4Defendants had advanced the standing and immunity defenses when they unsuccessfully moved to dismiss
the action and reasserted them in their motion for summary judgment. Defendants also unsuccessfully argued that
the action should be dismissed pursuant to the separation-of-powers, collateral-attack, abstention, and res-judicata
doctrines, and that the Ohio sentencing court and the housing authority were indispensable parties that Doe failed to
join as required by Federal Rule of Civil Procedure 19. On appeal, Defendants pursue only the standing and
immunity defenses.
No. 17-3857 Doe v. DeWine, et al. Page 5
fundamental right regardless of the procedural protections provided.”5 (R. 83, PID 758.) The
district court concluded, however, that “the failure to provide Doe with any opportunity during
her lifetime to challenge her classification as a sexual predator who currently is likely to re-
offend violates her procedural due process rights” because the challenged law implicates Doe’s
liberty and property interests in reputation and access to federally subsidized housing and
because Ohio lacks a procedural mechanism for Doe to obtain a reclassification hearing to
vindicate those interests. (Id. at 752, 755, 756.)
The district court initially ordered additional briefing on the issue of relief because it
concluded that it lacked authority to grant the requested injunction ordering a reclassification
hearing. However, at a subsequent status conference, the district court determined that further
briefing was unnecessary and, without issuing the injunction, struck down O.R.C.
§§ 2950.07(B)(1) and 2950.09(D)(2) as unconstitutional “to the extent they forever prohibit the
removal or termination of a ‘sexual predator’ classification with its requirements and duties.”
(R. 85, PID 769.)
Defendants timely appeal.6
III. DISCUSSION
A. Standard of Review
This court reviews de novo a district court’s summary judgment order based on purely
legal grounds. Black v. Roadway Express, Inc., 297 F.3d 445, 448 (6th Cir. 2002) (citations
omitted). We also review de novo whether the Eleventh Amendment entitles a defendant to
sovereign immunity, Price v. Medicaid Dir., 838 F.3d 739, 746 (6th Cir. 2016) (citation
omitted), and whether a plaintiff has Article III standing to bring the action, Murray v. U.S.
Dep’t of Treasury, 681 F.3d 744, 748 (6th Cir. 2012) (citation omitted).
5Doe does not pursue her substantive due process claim on appeal.
6Defendant Hamilton County Sheriff James Neil appealed the district court’s judgment but was later
dismissed from the action pursuant to the parties’ stipulation.
No. 17-3857 Doe v. DeWine, et al. Page 6
B. Jurisdiction
Before reaching the merits, we address Defendants’ contention that the district court
lacked subject-matter jurisdiction. Defendants claim that they are “immune from declaratory
relief” under the Eleventh Amendment “because they do not enforce the restrictions from which
Doe seeks relief,” and that “no order against [Defendants] can redress [Doe’s] claimed injury.”
(Appellants’ Br. at 2.)
1.
Because we have held that “the Eleventh Amendment is a true jurisdictional bar,”
Defendants’ entitlement to sovereign immunity “must be decided before the merits.” Russell v.
Lundergan-Grimes, 784 F.3d 1037, 1046 (6th Cir. 2015). The Eleventh Amendment “deprives
federal courts of subject-matter jurisdiction when a citizen sues his own State unless the State
waives its immunity or Congress abrogates that sovereign immunity.” Id. at 1046 (citation
omitted). However, under the Ex parte Young exception, “a federal court may, without violating
the Eleventh Amendment, issue a prospective injunction against a state officer to end a
continuing violation of federal law.” Price, 838 F.3d at 746–47 (citing Ex parte Young, 209 U.S.
123, 159 (1908)).
Defendants contend that Ex parte Young is inapplicable here because, under the relevant
Ohio laws, neither the Attorney General nor the Superintendent can enforce Doe’s compliance—
or prosecute her noncompliance—with the challenged registration requirements. See O.R.C.
§ 2950.04(A)(1)(a) (providing that a sex offender must register with the sheriff); id. § 309.08
(charging local prosecutors with enforcing state criminal laws). Indeed, “[g]eneral authority to
enforce the laws of the state is not sufficient to make government officials the proper parties to
litigation challenging the law.” Russell, 784 F.3d at 1048 (quoting 1st Westco Corp. v. Sch. Dist.
of Phila., 6 F.3d 108, 113 (3d Cir. 1993)). Rather, a state official must possess “some connection
with the enforcement of the [challenged law],” Ex parte Young, 209 U.S. at 157, and must
“threaten [or] be about to commence proceedings”—that is, it must be likely that the official will
enforce the law against the plaintiff, Russell, 784 F.3d at 1048 (quoting Children’s Healthcare is
a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th Cir. 1996)).
No. 17-3857 Doe v. DeWine, et al. Page 7
But Defendants’ lack of direct criminal enforcement authority does not foreclose Doe’s
reliance on Ex parte Young. In Russell, we explained that “[e]njoining a statewide official under
Young . . . is appropriate when there is a realistic possibility the official will take legal or
administrative actions against the plaintiff’s interests.” 784 F.3d at 1048. Russell held that a suit
to enjoin the Kentucky Attorney General, Secretary of State, and members of the State Board of
Elections from enforcing a “300-foot no-political-speech buffer zone around polling locations on
Election Day” fell within the Ex parte Young exception as to all the defendants. Id. at 1043. The
Attorney General was plainly susceptible to suit given that he possessed “authority to prosecute
[the plaintiff] for violating” the buffer-zone law and had “promised the public that [his office]
would pursue possible criminal sanctions” against those who violated it. Id. at 1047. Although
it was “a closer question” whether the Secretary of State and members of the State Board of
Elections were proper defendants, we held that these defendants, too, fell within the Ex parte
Young exception because they were “actively involved with administering the [challenged]
statute.” Id. at 1048. Specifically, the defendants’ administration of the buffer-zone law
included promulgating implementing regulations, authorizing exemptions, and training state and
local personnel regarding how to enforce the law. See id. Russell held that these actions
sufficiently affected the plaintiff so as to subject both the Secretary and the Board members to
suit under Ex parte Young. See id. at 1049.
Applying Russell, both the Attorney General and the Superintendent fall within the Ex
parte Young exception to Eleventh Amendment immunity. Like the Secretary of State and the
Board members in Russell, Defendants here are “actively involved with administering” the sex-
offender laws: they promulgate regulations implementing the sex-offender registration
requirements; operate the state-wide sex-offender database; and send and structure community
notifications that alert citizens to the proximity of registered offenders. See O.R.C. § 2950.13
(2014). These are “actions against [Doe’s] interests,” Russell, 784 F.3d at 1048, because they
involve the dissemination of allegedly false information about her—that she remains a currently
dangerous “sexual predator.” There is also a “realistic probability,” id., that Defendants will
disseminate the allegedly false information about Doe; they are doing so currently. Under
Russell, because Doe seeks to enjoin the injurious publication of her “sexual predator”
No. 17-3857 Doe v. DeWine, et al. Page 8
classification until she receives a due process hearing, the state officials tasked with publishing
that information are subject to suit under Ex parte Young.
2.
Defendants also contend that Doe lacks standing to assert her challenge. “Article III of
the Constitution limits the judicial power of the United States to the resolution of ‘Cases’ and
‘Controversies,’ and ‘Article III standing . . . enforces the Constitution’s case-or-controversy
requirement.’” Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 597–98 (2007)
(alteration in original) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)).
“[T]he irreducible constitutional minimum of standing contains three elements.” Lujan v. Defs.
of Wildlife, 504 U.S. 555, 560 (1992). “First, the plaintiff must have suffered an ‘injury in
fact’—an invasion of a legally protected interest which is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical.” Id. (internal quotation marks and
citations omitted). “Second, there must be a causal connection between the injury and the
conduct complained of—the injury has to be ‘fairly . . . trace[able] to the challenged action of the
defendant, and not . . . th[e] result [of] the independent action of some third party not before the
court.’” Id. at 560–61 (alterations in original) (citing Simon v. Eastern Ky. Welfare Rights Org.,
426 U.S. 26, 41–42 (1976)). “Third, it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” Id. at 561 (internal quotation marks and
citation omitted).
Defendants argue that Doe fails to satisfy the third standing requirement, redressability. 7
An injury is redressable if a judicial decree can provide “prospective relief” that will “remove the
harm.” Warth v. Seldin, 422 U.S. 490, 505 (1975). The relevant standard is likelihood—whether
it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 181
(2000). However, “the judicial decree is not the end but the means. At the end of the rainbow
lies not a judgment, but some action (or cessation of action) by the defendant that the judgment
7The first two elements of the standing inquiry are satisfied. Doe has alleged a sufficient injury—the
publication of her “sexual predator” classification without due process—and this injury is traceable to Defendants
because they disseminate the information via the state database and community notifications.
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produces. . . .” Hewitt v. Helms, 482 U.S. 755, 761 (1987). “Redress is sought through the
court, but from the defendant. . . . The real value of the judicial pronouncement—what makes it a
proper judicial resolution of a ‘case or controversy’ rather than an advisory opinion—is in the
settling of some dispute which affects the behavior of the defendant towards the plaintiff.” Id.
Thus, “[r]edressability is typically more difficult to establish where the prospective benefit to the
plaintiff depends on the actions of independent actors.” Parsons v. U.S. Dep’t of Justice,
801 F.3d 701, 715 (6th Cir. 2015) (citation omitted).
Doe requests several forms of relief, including (1) “a declaration that [the challenged
statutes] are unconstitutional for failure to provide her with a [reclassification] hearing,”
(Appellee’s Br. at 35), (2) “an Order that a hearing be scheduled in the sentencing court to
determine whether [Doe] is currently dangerous,” and (3) “any and all other relief this Court
finds appropriate.” (R. 1, PID 9.) She argues that these remedies would redress her injuries,
which she summarizes as:
Defendants publically[sic] disseminate false information that Doe is currently
dangerous, while she could prove that she is not; Doe and her children are barred
from public housing because of Defendant’s dissemination of this false
information; Doe is also subject to community notification and must register more
often than appropriate for her risk-level.
(Appellee’s Br. at 34.)
We recognize that the two Defendants, the Attorney General and the Superintendent,
have no power to hold a reclassification hearing for Doe or force a court to hold one. But, in
addition to striking the laws as unconstitutional, the district court could order Defendants to
remove Doe’s information from the state-wide registry and public-facing sex-offender database
they maintain, O.R.C. § 2950.13(1), (11), (13) (2006), and relieve her from any registration
requirements until an opportunity for a reclassification hearing becomes available. See United
States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1235 (2d Cir. 1987) (“The power of the federal
courts to remedy constitutional violations is flexible. . . . [and] [w]here such a violation has been
found, the court should tailor the remedy to fit the nature and extent of the violation.” (citations
omitted)).
No. 17-3857 Doe v. DeWine, et al. Page 10
To be sure, this remedy would not remove Doe’s judicially imposed sexual-predator
classification, nor guarantee her a hearing in state court to remove the classification, but it would
remove one barrier to the hearing—the law barring it—and would remove the stigmatizing
information from the Attorney General’s publicly available website. See Larson v. Valente,
456 U.S. 228, 243 n.15 (1982) (“[A] plaintiff satisfies the redressability requirement when he
shows that a favorable decision will relieve a discrete injury to himself. He need not show that a
favorable decision will relieve his every injury.”). Doe would thus “personally . . . benefit in a
tangible way from the court’s intervention,” which is sufficient to confer standing. Warth,
422 U.S. at 508 (footnote omitted).
C. Procedural Due Process
1.
The Fourteenth Amendment provides, in part, that “[n]o State shall . . . deprive any
person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
The Due Process Clause contains both a procedural and a substantive component. To present a
procedural due process claim under 42 U.S.C. § 1983, the plaintiff must “show that the
defendant acted under the color of state law to deprive the plaintiff of a definite liberty or
property interest.” Mich. Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 539 (6th Cir.
2002).
The Supreme Court addressed a procedural due process challenge to a sex-offender
registration law in Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003) (“DPS”).
There, the plaintiff claimed that Connecticut’s failure to provide a pre-deprivation hearing to
determine a sex offender’s current dangerousness before the offender’s inclusion in a publicly
disseminated sex-offender registry violated procedural due process. Id. at 3. The Supreme Court
rejected the challenge:
In cases such as Wisconsin v. Constantineau, 400 U.S. 433 [] (1971), and Goss v.
Lopez, 419 U.S. 565 [] (1975), we held that due process required the government
to accord the plaintiff a hearing to prove or disprove a particular fact or set of
facts. But in each of these cases, the fact in question was concededly relevant to
the inquiry at hand. Here, however, the fact that respondent seeks to prove—that
he is not currently dangerous—is of no consequence under Connecticut’s
No. 17-3857 Doe v. DeWine, et al. Page 11
Megan’s Law. As the DPS Website explains, the law’s requirements turn on an
offender’s conviction alone[.]
Id. at 7.
The Court thus concluded that “because due process does not require the opportunity to
prove a fact that is not material to the State’s statutory scheme,” a plaintiff who asserts a right to
a hearing under the Due Process Clause must show that the fact the plaintiff seeks to establish in
that hearing is relevant under the statutory scheme. Id. at 4, 8.
2.
Doe argues that her procedural due process claim is distinguishable from the claim
rejected in DPS because Connecticut’s classification is based solely on the fact of an offender’s
conviction, while Ohio’s is based on present dangerousness, and that because “her classification
defines her as presently dangerous,” her present dangerousness is relevant under Ohio law and
must be subject to reevaluation. (Appellee’s Br. at 8, 13.) Indeed, the parties agree that Doe’s
procedural due process claim turns on whether Doe’s present dangerousness, or present
likelihood to reoffend, is “a fact that is . . . material to [Ohio’s] statutory scheme.” DPS,
538 U.S. at 4. We agree with Defendants that Doe’s present dangerousness is not material under
Ohio’s sexual-offender registration and notification scheme, and, therefore, due process does not
require that she be granted a hearing to challenge her classification.
Doe is correct that unlike the Ohio law applicable here, the Connecticut scheme did not
provide an offender with a hearing at sentencing (or immediately after sentencing) to assess the
offender’s likelihood of reoffending; instead, the classification flowed from the conviction itself
and was automatic. But this distinction is of no consequence. DPS’s holding is clear: “Plaintiffs
who assert a right to a hearing under the Due Process Clause must show that the facts they seek
to establish in that hearing are relevant under the statutory scheme.” Id. at 8. Doe is unable to
make that showing.
Ohio defines “sexual predator” as “a person who has been convicted of, or has pleaded
guilty to, committing a sexually oriented offense and is likely to engage in the future in one or
more sexually oriented offenses.” O.R.C. § 2950.01(E) (2006). Doe argues that this definition
No. 17-3857 Doe v. DeWine, et al. Page 12
“show[s] the central role of current risk in [Ohio’s sexual-offender] classifications” because
“[t]he statutory construction uses present-tense language for likelihood of reoffending, contrasted
with past tense for ‘convicted of or pleaded guilty.’ Based on this definition, Doe’s status as a
sexual predator purports to reflect current dangerousness, not her level of dangerousness in
2006.” (Appellee’s Br. at 8.) We disagree.
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).8
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.
We note that the legislative history of Ohio’s sexual-offender registration and notification
laws, relied on by Doe, provides her no support. Doe argues that “[s]tatutory intent/history
shows [the] relevance of present risk,” because “[w]hen creating [the sex-offender]
classifications, Ohio’s legislature expressed its intention to build a risk-based system to ensure
8Notably, Ohio continues to allow juveniles to petition a court for a reevaluation of their recidivism risk
and a change in their classification. O.R.C § 2152.85 (2008).
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public safety.” (Appellee’s Br. at 8–9 (citing O.R.C. §§ 2950.02(A)(6) (1996)9, 2950.02(B)
(1996)10.) To the extent that the legislative history suggests that “relevant information” means
current information, and that a change in an offender’s likelihood of reoffending was at one point
considered relevant, that is consistent with our understanding of the statute; the provisions Doe
cites for support were enacted at a time when Ohio allowed offenders to petition for a rehearing.
At that time, Ohio apparently believed that risk reassessment was appropriate, and present
dangerousness material. But the Ohio legislature changed the law in 2003 to provide that “the
classification or adjudication of the offender as a sexual predator is permanent and continues in
effect until the offender’s death and in no case shall the classification or adjudication be removed
or terminated.” O.R.C. § 2950.09(D)(2). The legislature’s intent could not be more clear: Doe’s
classification at the post-sentencing hearing is permanent and cannot be changed.
As in DPS, the state “has decided that the registry information of all sex offenders—
currently dangerous or not—must be publicly disclosed,” 538 U.S. at 7 (emphasis added), and
“States are not barred by principles of ‘procedural due process’ from drawing such
classifications.” Id. at 8 (citations omitted).
Absent a claim (which respondent has not made here) that the liberty interest in
question is so fundamental as to implicate so-called “substantive” due process, a
properly enacted law can eliminate it. That is ultimately why . . . a convicted sex
offender has no more right to additional “process” enabling him to establish that
he is not dangerous than . . . a 15-year-old has a right to “process” enabling him to
establish that he is a safe driver.
9Section 2950.02(A)(6) stated:
The release of information about sexual predators and habitual sex offenders to public
agencies and the general public will further the governmental interests of public safety
and public scrutiny of the criminal and mental health systems as long as the information
released is rationally related to the furtherance of those goals.
10Section 2950.02(B) stated:
[I]t is the general assembly’s intent to protect the safety and general welfare of the people
of this state. The general assembly further declares that it is the policy of this state to
require the exchange in accordance with this chapter of relevant information about sexual
predators and habitual sex offenders among public agencies and officials and to authorize
the release in accordance with this chapter of necessary and relevant information about
sexual predators and habitual sex offenders to members of the general public as a means
of assuring public protection and that the exchange or release of that information is not
punitive.
No. 17-3857 Doe v. DeWine, et al. Page 14
Id. at 8–9 (Scalia, J., concurring). Doe’s extensive discussion of scientific scholarship declaring
that “[t]he likelihood that a sex offender will reoffend declines with time, treatment, and other
factors,” suggests that reassessment of risk should be material under Ohio’s statutory scheme,
but it does not show that it is material. And Ohio’s failure to consider changes to an offender’s
likelihood of reoffending does not implicate procedural due process concerns. Id. at 8 (“Such
claims must ultimately be analyzed in terms of substantive, not procedural, due process.”
(citation omitted)).
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.
IV. CONCLUSION
We REVERSE the judgment of the district court holding O.R.C. §§ 2950.09(D)(2)
(2003) and 2950.07(B)(1) (2003) unconstitutional.