Gregory v. Sexual Offender Registration Review Board , 298 Ga. 675 ( 2016 )

In the Supreme Court of Georgia
Decided: March 21, 2016
S15A1718. GREGORY v. SEXUAL OFFENDER REGISTRATION
REVIEW BOARD.
BLACKWELL, Justice.
The Fourteenth Amendment of the United States Constitution forbids the
State to “deprive any person of life, liberty, or property without due process of
law,” and in this case, we consider what process, if any, is constitutionally due
a person whom the State seeks to classify as a “sexually dangerous predator”
under the Georgia sexual offender registration laws, OCGA § 42-1-12 et seq.1
Scott Gregory is a convicted sexual offender, and in 2013, the Sexual Offender
Registration Review Board classified him as a sexually dangerous predator. See
OCGA § 42-1-14 (a). Gregory timely asked the Board to reevaluate his
classification, see OCGA § 42-1-14 (b), but the Board denied his request.
1
We are concerned today only with the process due under the Fourteenth Amendment
of the United States Constitution. Although the Georgia Constitution also guarantees that
“[n]o person shall be deprived of life, liberty, or property except by due process of law,” Ga.
Const. of 1983, Art. I, Sec. I, Par. I, no party to this case has advanced any argument on
appeal about the process due under the Georgia Constitution. See Barzey v. City of Cuthbert,
295 Ga. 641, 643 (2) (763 SE2d 447) (2014).
Gregory then petitioned the Superior Court of Fulton County for judicial review
of his classification, see OCGA § 42-1-14 (c), but the superior court affirmed
the decision of the Board. In the course of these administrative and judicial
proceedings, Gregory had opportunities to submit favorable documentary
evidence to both the Board and the superior court, but he never has been
afforded an evidentiary hearing on the question of his classification. Gregory
appeals from the judgment of the superior court,2 asserting that the refusal of an
evidentiary hearing is inconsistent with the constitutional guarantee of due
process.3 We agree, and for that reason, we reverse the judgment below and
remand for further proceedings consistent with this opinion.
1. In June 2009, Gregory used a computer to broadcast lewd images over
the Internet to a person who was, Gregory believed, a teenage girl.4 As a result,
2
Gregory properly filed an application in this Court for leave to appeal from the
judgment of the superior court. See OCGA § 5-6-35 (a) (1). We granted his application, and
this appeal followed.
3
Gregory also contends that, to the extent the Georgia sexual offender registration
laws permit classification as a sexually dangerous predator without an evidentiary hearing,
the statutes are unconstitutional. That contention, which the superior court considered and
rejected, gives this Court jurisdiction of this appeal. See Ga. Const. of 1983, Art. VI, Sec. VI,
Par. II (1).
4
As it turns out, the person to whom Gregory broadcast the images actually was a
Forsyth County law enforcement officer.
2
Gregory was convicted in 2012 of obscene Internet contact with a child, see
OCGA § 16-12-100.2 (e) (1),5 and for this felony, he was sentenced to
imprisonment, followed by a term of probation.6 For the purposes of the Georgia
sexual offender registration laws, obscene Internet contact with a child is a
“dangerous sexual offense,” see OCGA § 42-1-12 (a) (10) (B) (xvii),7 and any
5
At the time Gregory committed the offense of obscene Internet contact with a child,
OCGA § 16-12-100.2 (e) (1) provided:
A person commits the offense of obscene Internet contact with a child if he or
she has contact with someone he or she knows to be a child or with someone
he or she believes to be a child via a computer on-line service or Internet
service, including but not limited to a local bulletin board service, Internet chat
room, e-mail, or on-line messaging service, and the contact involves any
matter containing explicit verbal descriptions or narrative accounts of sexually
explicit nudity, sexual conduct, sexual excitement, or sadomasochistic abuse
that is intended to arouse or satisfy the sexual desire of either the child or the
person, provided that no conviction shall be had for a violation of this
subsection on the unsupported testimony of a child.
6
Gregory entered a plea of guilty in 2010, but at that time, adjudication of guilt was
withheld, and Gregory was sentenced to probation under the terms of the First Offender Act,
OCGA § 42-8-60 et seq. Two years later, Gregory was arrested for public indecency,
following an incident in which he exposed himself at a public swimming pool. As a result
of that incident, his probation under the First Offender Act was revoked, he was adjudicated
guilty and convicted of obscene Internet contact with a child, and he was sentenced to
imprisonment and probation.
7
The statutory definition of “dangerous sexual offense” has changed over time. For
convictions on or before June 30, 2006, “dangerous sexual offense” is defined in OCGA §
42-1-12 (a) (10) (A). For convictions between July 1, 2006, and June 30, 2015, “dangerous
sexual offense” is defined in OCGA § 42-1-12 (a) (10) (B). And for convictions after June
30, 2015, “dangerous sexual offense” is defined in OCGA § 42-1-12 (a) (10) (B.1). Because
Gregory was convicted of obscene Internet contact with a child in 2012, the relevant
definition for the purposes of this case is set forth in OCGA § 42-1-12 (a) (10) (B), which
3
provides:
“Dangerous sexual offense” with respect to convictions occurring between
July 1, 2006, and June 30, 2015, means any criminal offense, or the attempt to
commit any criminal offense, under Title 16 as specified in this paragraph or
any offense under federal law or the laws of another state or territory of the
United States which consists of the same or similar elements of the following
offenses:
(i) Aggravated assault with the intent to rape in violation of Code
Section 16-5-21;
(ii) Kidnapping in violation of Code Section 16-5-40 which involves a
victim who is less than 14 years of age, except by a parent;
(iii) False imprisonment in violation of Code Section 16-5-41 which
involves a victim who is less than 14 years of age, except by a parent;
(iv) Rape in violation of Code Section 16-6-1;
(v) Sodomy in violation of Code Section 16-6-2;
(vi) Aggravated sodomy in violation of Code Section 16-6-2;
(vii) Statutory rape in violation of Code Section 16-6-3, if the individual
convicted of the offense is 21 years of age or older;
(viii) Child molestation in violation of Code Section 16-6-4;
(ix) Aggravated child molestation in violation of Code Section 16-6-4,
unless the person was convicted of a misdemeanor offense;
(x) Enticing a child for indecent purposes in violation of Code Section
16-6-5;
(xi) Sexual assault against persons in custody in violation of Code
Section 16-6-5.1;
(xii) Incest in violation of Code Section 16-6-22;
(xiii) A second conviction for sexual battery in violation of Code
Section 16-6-22.1;
(xiv) Aggravated sexual battery in violation of Code Section 16-6-22.2;
(xv) Sexual exploitation of children in violation of Code Section 16-12-
100;
(xvi) Electronically furnishing obscene material to minors in violation
of Code Section 16-12-100.1;
(xvii) Computer pornography and child exploitation in violation of
Code Section 16-12-100.2;
(xviii) Obscene telephone contact in violation of Code Section 16-12-
100.3; or
(xix) Any conduct which, by its nature, is a sexual offense against a
4
person convicted of a “dangerous sexual offense” is a “sexual offender.” See
OCGA § 42-1-12 (a) (20) (A).8 Gregory is, therefore, a sexual offender subject
to the sexual offender registration laws.
Those laws require every sexual offender convicted of a dangerous sexual
offense on or after July 1, 1996 to fulfill certain registration requirements, see
OCGA § 42-1-12 (e) (2),9 including a requirement that such an offender register
victim who is a minor or an attempt to commit a sexual offense against a
victim who is a minor.
We note that a violation of OCGA § 16-12-100.2 also is a “dangerous sexual offense” with
respect to convictions after June 30, 2015. See OCGA § 42-1-12 (a) (10) (B.1) (xvii).
8
OCGA § 42-1-12 (a) (20) provides:
“Sexual offender” means any individual:
(A) Who has been convicted of a criminal offense against a victim who
is a minor or any dangerous sexual offense;
(B) Who has been convicted under the laws of another state or territory,
under the laws of the United States, under the Uniform Code of Military
Justice, or in a tribal court of a criminal offense against a victim who is a
minor or a dangerous sexual offense; or
(C) Who is required to register pursuant to subsection (e) of this Code
section.
The term “criminal offense against a victim who is a minor” is defined in OCGA § 42-1-12
(a) (9).
9
OCGA § 42-1-12 (e) provides:
Registration pursuant to this Code section shall be required by any individual
who:
(1) Is convicted on or after July 1, 1996, of a criminal offense against
a victim who is a minor;
(2) Is convicted on or after July 1, 1996, of a dangerous sexual offense;
(3) Has previously been convicted of a criminal offense against a victim
who is a minor and may be released from prison or placed on parole,
5
annually with the sheriff of his county of residence. See OCGA § 42-1-12 (f)
(4).10 Sheriffs are required to maintain lists of registered sexual offenders and
supervised release, or probation on or after July 1, 1996;
(4) Has previously been convicted of a sexually violent offense or
dangerous sexual offense and may be released from prison or placed on parole,
supervised release, or probation on or after July 1, 1996;
(5) Is a resident of Georgia who intends to reside in this state and who
is convicted under the laws of another state or the United States, under the
Uniform Code of Military Justice, or in a tribal court of a sexually violent
offense, a criminal offense against a victim who is a minor on or after July 1,
1999, or a dangerous sexual offense on or after July 1, 1996;
(6) Is a nonresident who changes residence from another state or
territory of the United States or any other place to Georgia who is required to
register as a sexual offender under federal law, military law, tribal law, or the
laws of another state or territory or who has been convicted in this state of a
criminal offense against a victim who is a minor or any dangerous sexual
offense;
(7) Is a nonresident sexual offender who enters this state for the purpose
of employment or any other reason for a period exceeding 14 consecutive days
or for an aggregate period of time exceeding 30 days during any calendar year
regardless of whether such sexual offender is required to register under federal
law, military law, tribal law, or the laws of another state or territory; or
(8) Is a nonresident sexual offender who enters this state for the purpose
of attending school as a full-time or part-time student regardless of whether
such sexual offender is required to register under federal law, military law,
tribal law, or the laws of another state or territory.
10
OCGA § 42-1-12 (f) provides:
Any sexual offender required to register under this Code section shall:
(1) Provide the required registration information to the appropriate
official before being released from prison or placed on parole, supervised
release, or probation;
(2) Register in person with the sheriff of the county in which the sexual
offender resides within 72 hours after the sexual offender’s release from prison
or placement on parole, supervised release, probation, or entry into this state;
(2.1) In the case of a sexual offender whose place of residence is the
status of homelessness, in lieu of the requirements of paragraph (2) of this
6
to make the lists available for public inspection. See OCGA § 42-1-12 (i) (3).
Sheriffs also must submit these lists to the Georgia Bureau of Investigation, see
OCGA § 42-1-12 (i) (2), which furnishes the lists annually to schools, daycare
facilities, and long-term care facilities for children throughout the State. See
OCGA § 42-1-12 (l) (1-3). Many sexual offenders subject to the registration
subsection, register in person with the sheriff of the county in which the sexual
offender sleeps within 72 hours after the sexual offender’s release from prison
or placement on parole, supervised release, probation, or entry into this state
and provide the location where he or she sleeps;
(3) Maintain the required registration information with the sheriff of
each county in which the sexual offender resides or sleeps;
(4) Renew the required registration information with the sheriff of the
county in which the sexual offender resides or sleeps by reporting in person to
the sheriff within 72 hours prior to such offender’s birthday each year to be
photographed and fingerprinted;
(5) Update the required registration information with the sheriff of the
county in which the sexual offender resides within 72 hours of any change to
the required registration information, other than where he or she resides or
sleeps if such person is homeless. If the information is the sexual offender’s
new address, the sexual offender shall give the information regarding the
sexual offender’s new address to the sheriff of the county in which the sexual
offender last registered within 72 hours prior to any change of address and to
the sheriff of the county to which the sexual offender is moving within 72
hours prior to establishing such new address. If the sexual offender is homeless
and the information is the sexual offender’s new sleeping location, within 72
hours of changing sleeping locations, the sexual offender shall give the
information regarding the sexual offender’s new sleeping location to the
sheriff of the county in which the sexual offender last registered, and if the
county has changed, to the sheriff of the county to which the sexual offender
has moved; and
(6) Continue to comply with the registration requirements of this Code
section for the entire life of the sexual offender, excluding ensuing periods of
incarceration.
7
requirements also are prohibited from residing within 1,000 feet of a childcare
facility, church, school, or “area where minors congregate,”11 see OCGA § 42-1-
15 (b),12 and from working or volunteering at any childcare facility, church,
school, or business located within 1,000 feet of a childcare facility, church, or
school. See OCGA § 42-1-15 (c) (1).13 To the extent that a sexual offender is
11
“Area where minors congregate” includes “all public and private parks and
recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, school
bus stops, public libraries, and public and community swimming pools.” OCGA § 42-1-12
(a) (3).
12
OCGA § 42-1-15 (b) provides:
On and after July 1, 2008, no individual [required to register] shall reside
within 1,000 feet of any child care facility, church, school, or area where
minors congregate if the commission of the act for which such individual is
required to register occurred on or after July 1, 2008. Such distance shall be
determined by measuring from the outer boundary of the property on which the
individual resides to the outer boundary of the property of the child care
facility, church, school, or areas where minors congregate at their closest
points.
See also OCGA §§ 42-1-16 (b) (residency restriction for individuals required to register by
virtue of acts committed between July 1, 2006 and June 30, 2008), 42-1-17 (b) (residency
restriction for individuals required to register by virtue of acts committed between June 4,
2003 and June 30, 2006).
13
OCGA § 42-1-15 (c) (1) provides:
On and after July 1, 2008, no individual [required to register] shall be
employed by or volunteer at any child care facility, school, or church or by or
at any business or entity that is located within 1,000 feet of a child care
facility, a school, or a church if the commission of the act for which such
individual is required to register occurred on or after July 1, 2008. Such
distance shall be determined by measuring from the outer boundary of the
property of the location at which such individual is employed or volunteers to
the outer boundary of the child care facility, school, or church at their closest
8
subject to these registration requirements and residency and employment
restrictions, it is his conviction alone that renders him subject to the
requirements and restrictions.
Additional requirements and restrictions may attach, however, upon a
finding that a sexual offender presents a significant risk of committing
additional dangerous sexual offenses. The sexual offender registration laws
require the Board14 to assess “the likelihood that a sexual offender will engage
in another crime against a victim who is a minor or a dangerous sexual offense,”
OCGA § 42-1-14 (a) (1), and to classify sexual offenders according to that
assessment. See OCGA § 42-1-14 (a) (2). There are three classifications. A
“Level I risk assessment classification” signifies that “the sexual offender is a
points.
See also OCGA § 42-1-16 (c) (1) (employment restriction for individuals required to register
by virtue of acts committed between July 1, 2006 and June 30, 2008).
14
The Board is
composed of three professionals licensed under Title 43 and knowledgeable
in the field of the behavior and treatment of sexual offenders; at least one
representative from a victim’s rights advocacy group or agency; and at least
two representatives from law enforcement, each of whom is either employed
by a law enforcement agency as a certified peace officer under Title 35 or
retired from such employment.
OCGA § 42-1-13 (a). Members of the Board are appointed by the Governor and serve for a
term of four years. See id.
9
low sex offense risk and low recidivism risk for future sexual offenses.” OCGA
§ 42-1-12 (a) (12). A “Level II risk assessment classification” means that “the
sexual offender is an intermediate sex offense risk and intermediate recidivism
risk for future sexual offenses,” and it is the default classification for sexual
offenders. OCGA § 42-1-12 (a) (13). A “sexually dangerous predator”
classification indicates that the sexual offender is “at risk of perpetrating any
future dangerous sexual offense.” OCGA § 42-1-12 (a) (21) (B). In assessing
and classifying a sexual offender, the Board may rely upon a variety of
information provided by prosecuting attorneys, the Georgia Bureau of
Investigation, the State Board of Pardons and Paroles, the Department of
Corrections, the Department of Community Supervision, and the sexual offender
himself. See OCGA § 42-1-14 (a) (2). Such information may include
“psychological evaluations, sexual history polygraph information, treatment
history, [] personal, social, educational, and work history,” criminal history, and
court records. Id.15 Although the sexual offender is entitled to submit any
15
In pertinent part, OCGA § 42-1-14 (a) (2) provides:
A sexual offender shall be placed into Level I risk assessment classification,
Level II risk assessment classification, or sexually dangerous predator
classification based upon the board’s assessment criteria and information
obtained and reviewed by the board. The sexual offender may provide the
10
information relevant to his classification, there is no provision for an
administrative evidentiary hearing in connection with the Board’s initial
assessment and classification of a sexual offender. See id. Upon making a
classification determination, the Board must notify a sexual offender of his
classification in writing. See OCGA § 42-1-14 (a) (3).
Sexual offenders classified as Level II risk assessments or sexually
dangerous predators may seek administrative reevaluation, and in connection
with that reevaluation, sexual offenders again have an opportunity to provide
information relevant to their classification:
board with information, including, but not limited to, psychological
evaluations, sexual history polygraph information, treatment history, and
personal, social, educational, and work history, and may agree to submit to a
psychosexual evaluation or sexual history polygraph conducted by the board.
If the sexual offender has undergone treatment or supervision through the
Department of Corrections or the Department of Community Supervision, such
treatment records shall also be submitted to the board for evaluation. The
prosecuting attorney shall provide the board with any information available to
assist the board in rendering an opinion, including, but not limited to, criminal
history and records related to previous criminal history. The board shall utilize
the Georgia Bureau of Investigation to assist it in obtaining information
relative to its evaluation of sexual offenders and the Georgia Bureau of
Investigation shall provide the board with information as requested by the
board. The board shall be authorized to obtain information from supervision
records of the State Board of Pardons and Paroles regarding such sexual
offender . . . . The clerk of court shall send a copy of the sexual offender’s
conviction to the board and notify the board that a sexual offender’s evaluation
will need to be performed. . . .
11
If the board determines that a sexual offender should be classified
as a Level II risk assessment classification or as a sexually
dangerous predator, the sexual offender may petition the board to
reevaluate his or her classification. To file a petition for
reevaluation, the sexual offender shall be required to submit his or
her written petition for reevaluation to the board within 30 days
from the date of the letter notifying the sexual offender of his or her
classification. The sexual offender shall have 60 days from the date
of the notification letter to submit information as provided in
subsection (a) of this Code section in support of the sexual
offender’s petition for reevaluation. If the sexual offender fails to
submit the petition or supporting documents within the time limits
provided, the classification shall be final. The board shall notify the
sexual offender by first-class mail of its decision on the petition for
reevaluation of risk assessment classification . . . .
OCGA § 42-1-14 (b). Although a sexual offender is afforded an opportunity to
submit documentary evidence in support of a petition for administrative
reevaluation, there is no provision for an administrative evidentiary hearing in
connection with the Board’s consideration of such a petition. See id.
Sexual offenders classified as Level II risk assessments or sexually
dangerous predators also may seek judicial review of their classifications, and
yet again, they are afforded an opportunity to submit documentary evidence in
connection with judicial review. Moreover, there is a provision for the reviewing
court to hold an evidentiary hearing, but that provision is permissive, not
mandatory:
12
A sexual offender who is classified by the board as a Level II risk
assessment classification or as a sexually dangerous predator may
file a petition for judicial review of his or her classification within
30 days of the date of the notification letter or, if the sexual
offender has requested reevaluation pursuant to subsection (b) of
this Code section, within 30 days of the date of the letter denying
the petition for reevaluation. The petition for judicial review shall
name the board as defendant, and the petition shall be filed in the
superior court of the county where the offices of the board are
located. Within 30 days after service of the appeal on the board, the
board shall submit a summary of its findings to the court and mail
a copy, by first-class mail, to the sexual offender. The findings of
the board shall be considered prima-facie evidence of the
classification. The court shall also consider any relevant evidence
submitted, and such evidence and documentation shall be mailed to
the parties as well as submitted to the court. The court may hold a
hearing to determine the issue of classification. The court may
uphold the classification of the board, or, if the court finds by a
preponderance of the evidence that the sexual offender is not placed
in the appropriate classification level, the court shall place the
sexual offender in the appropriate risk assessment classification. .
..
OCGA § 42-1-14 (c).
A sexually dangerous predator is subject to requirements and restrictions
in addition to those requirements and restrictions that apply to sexual offenders
generally. Most notably, OCGA § 42-1-14 (e) requires a sexually dangerous
predator to submit for the rest of his life to electronic monitoring and tracking
of his person and to pay the costs associated with that monitoring and tracking:
13
Any sexually dangerous predator shall be required to wear an
electronic monitoring system that shall have, at a minimum:
(1) The capacity to locate and record the location of a sexually
dangerous predator by a link to a global positioning satellite system;
(2) The capacity to timely report or record a sexually
dangerous predator’s presence near or within a crime scene or in a
prohibited area or the sexually dangerous predator’s departure from
specific geographic locations; and
(3) An alarm that is automatically activated and broadcasts the
sexually dangerous predator’s location if the global positioning
satellite monitor is removed or tampered with by anyone other than
a law enforcement official designated to maintain and remove or
replace the equipment.
Such electronic monitoring system shall be worn by a sexually
dangerous predator for the remainder of his or her natural life. The
sexually dangerous predator shall pay the cost of such system to the
Department of Community [Supervision] if the sexually dangerous
predator is under probation or parole supervision and to the sheriff
after the sexually dangerous predator completes his or her term of
probation and parole or if the sexually dangerous predator has
moved to this state from another state, territory, or country. The
electronic monitoring system shall be placed upon the sexually
dangerous predator prior to his or her release from confinement. If
the sexual offender is not in custody, within 72 hours of the
decision classifying the sexual offender as a sexually dangerous
predator in accordance with subsection (b) of this Code section, the
sexually dangerous predator shall report to the sheriff of the county
of his or her residence for purposes of having the electronic
monitoring system placed on the sexually dangerous predator.
14
In addition, sexually dangerous predators must register with their sheriffs more
frequently than other sexual offenders, see OCGA § 42-1-14 (f),16 and many
sexually dangerous predators are subject to an additional employment
restriction, prohibiting employment or volunteer work at any business located
within 1,000 feet of an area where minors congregate. See OCGA § 42-1-15 (c)
(2).17 Finally, although there are procedures by which a sexual offender may
seek to be released from the registration requirements and residency and
employment restrictions, see OCGA § 42-1-19, the standard for release is, quite
understandably, more onerous for Level II risk assessments and sexually
dangerous predators. See OCGA § 42-1-19 (c) (2) (A-B).
16
OCGA § 42-1-14 (f) provides:
In addition to the requirements of registration for all sexual offenders, a
sexually dangerous predator shall report to the sheriff of the county where such
predator resides six months following his or her birth month and update or
verify his or her required registration information.
17
OCGA § 42-1-15 (c) (2) provides:
On or after July 1, 2008, no individual who is a sexually dangerous predator
shall be employed by or volunteer at any business or entity that is located
within 1,000 feet of an area where minors congregate if the commission of the
act for which such individual is required to register occurred on or after July
1, 2008. Such distance shall be determined by measuring from the outer
boundary of the property of the location at which the sexually dangerous
predator is employed or volunteers to the outer boundary of the area where
minors congregate at their closest points.
See also OCGA § 42-1-16 (c) (2) (employment restriction for sexually dangerous predators
required to register by virtue of acts committed between July 1, 2006 and June 30, 2008).
15
In 2013, the Board classified Gregory as a sexually dangerous predator.
That classification was based principally on the written recommendation of a
clinical evaluator, who relied in significant part on documentary evidence of the
circumstances that led to the conviction for obscene Internet contact with a
child, as well as two incidents — one in 1995, another 2012 — that involved
Gregory indecently exposing himself to others. After the Board notified Gregory
of his classification, he timely petitioned the Board for reevaluation, and in
connection with that reevaluation, he submitted to the Board numerous
documents that related to his treatment for psychosexual issues from 2011
through 2013. Those documents included extensive psychological, psychiatric,
and psychosexual records, reports, evaluations, and prognoses, as well as letters
from both expert and lay witnesses. A different clinical evaluator examined this
documentation, concluding in her own written report that the original
recommendation was appropriate, and the Board denied the petition for
reevaluation. At that point, Gregory timely filed a petition for judicial review.
The superior court afforded him yet another opportunity to file documentary
evidence favorable to his position, and this time, he submitted a polygraph
report and additional letters from expert witnesses, friends and acquaintances,
16
and his supervision officer. The superior court did not, however, afford Gregory
an evidentiary hearing, notwithstanding that he specifically requested a hearing,
and the court subsequently affirmed the classification determination of the
Board. With this background in mind, we turn now to the constitutional question
presented.
2. Gregory contends that his classification as a sexually dangerous
predator — without affording him any opportunity in person at an evidentiary
hearing to present favorable evidence and confront unfavorable evidence
concerning the likelihood that he will commit additional dangerous sexual
offenses — amounts to a deprivation of his liberty without due process of law.18
To begin, we must consider whether classification as a sexually dangerous
predator implicates the sort of “liberty” with which the Fourteenth Amendment
18
We note that Gregory not only requested a hearing in superior court, but he
specifically argued in the superior court that the denial of a hearing would amount to a
violation of the guarantee of due process. As our Court of Appeals has explained, even if a
party “has a due process right to a hearing, that right might be waived by failure to request
a hearing. The trial court has no duty to initiate a hearing until requested by one of the
parties. The party seeking a hearing must take affirmative steps to request one.” Kraft v.
Adams, 248 Ga. App. 141, 144 (2) (545 SE2d 69) (2001) (citation and punctuation omitted).
See also Mangrum v. State, 285 Ga. 676, 682 (8) (681 SE2d 130) (2009) (same principle
applied to due process right to hearing on motion for new trial). To the extent, if any, that due
process demands a hearing in this case, Gregory has preserved his entitlement to such a
hearing by his request in the superior court.
17
is concerned. As the United States Supreme Court has explained, “[p]rocedural
due process imposes constraints on governmental decisions which deprive
individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due
Process Clause of the . . . Fourteenth Amendment.” Mathews v. Eldridge, 424
U.S. 319, 332 (III) (A) (96 SCt 893, 47 LE2d 18) (1976). “To determine
whether due process requirements apply in the first place, we must look not to
the ‘weight’ but to the nature of the interest at stake.” Greenholtz v. Inmates of
Neb. Penal & Correctional Complex, 442 U.S. 1, 7 (III) (99 SCt 2100, 60 LE2d
668) (1979) (citation and punctuation omitted; emphasis in original). In this
case, Gregory and the Board dispute whether a classification as a sexually
dangerous predator implicates a liberty interest. We conclude that it most
certainly implicates such an interest.
On the question of a liberty interest, Gregory points first to the
opprobrium and significant reputational harm that follow after a classification
as a sexually dangerous predator. The stigma of such a classification seems
apparent, and it cannot, we think, seriously be disputed. Nevertheless, as the
Board correctly notes, “stigmatization of reputation alone does not implicate a
liberty interest sufficient to invoke federal due process protection.” State v.
18
Jackson, 269 Ga. 308, 310 (1) (496 SE2d 912) (1998). See also Paul v. Davis,
424 U.S. 693, 701-710 (II) (B) (96 SCt 1155, 47 LE2d 405) (1976). If Gregory
pointed to nothing but opprobrium and reputational harm, he would fail to show
that his classification implicates a liberty interest. But Gregory does not rely on
stigma alone.
To the contrary, as Gregory notes, his classification as a sexually
dangerous predator affects him in other ways. For instance, sexually dangerous
predators must report to the sheriff more frequently than Level I and Level II
sexual offenders. See OCGA § 42-1-14 (f). Sexually dangerous predators cannot
work at any business within 1,000 feet of an area in which minors congregate,
see OCGA § 42-1-15 (c) (2), an employment restriction in addition to those
imposed on sexual offenders generally. Most significantly, as a sexually
dangerous predator, Gregory must submit to the placement of an electronic
monitoring device on his person, he must wear that device for the remainder of
his life, he must yield to the State using that device to track his whereabouts at
any time it desires to do so, and he must pay the State for the cost of that device.
The requirement that Gregory submit to such electronic monitoring and tracking
by means of a device attached to his person is — quite clearly, we think — a
19
serious restraint of his liberty. See Commonwealth v. Cory, 911 NE2d 187, 196-
197 (Mass. 2009); Doe v. Mass. Parole Bd., 979 NE2d 226, 232-233 (Mass.
App. 2012). See also Vitek v. Jones, 445 U.S. 480, 492 (III) (B) (100 SCt 1254,
63 LE2d 552) (1980) (“Among the historic liberties protected by the Due
Process Clause is the right to be free from, and to obtain judicial relief for,
unjustified intrusions on personal security.” (Citation and punctuation omitted)).
Although the Board maintains that a classification as a sexually dangerous
predator implicates no cognizable liberty interest, it has failed to point to any
persuasive authority for the proposition that compelled submission to electronic
monitoring and tracking for life does not affect the sort of “liberty” with which
the Fourteenth Amendment is concerned.
Considering the electronic monitoring and tracking requirement, the
additional registration requirement, the additional employment restriction, and
the opprobrium and reputational harm associated with classification as a
sexually dangerous predator, we hold that such a classification implicates a
liberty interest. The constitutional guarantee of due process applies to a
classification as a sexually dangerous predator under the Georgia sexual
offender registration laws. We now turn, therefore, to the question of what
20
process is due, and more specifically, whether the classification requires an
evidentiary hearing.
3. To decide what process is due, we apply the familiar three-factor test
that the United States Supreme Court identified in Mathews, 424 U.S. at 335
(III) (A), weighing “(1) the private interest affected; (2) the possibility of
erroneous deprivation using the established procedure and the probable value
of additional procedural safeguards; and (3) the government’s interest in the
procedure or the burden of providing greater procedural protections.”
Subsequent Injury Trust Fund v. James, 261 Ga. 548, 548 (406 SE2d 77)
(1991). When applying the Mathews test, the Supreme Court has cautioned that
“the very nature of the due process inquiry indicates that the fundamental
fairness of a particular procedure does not turn on the result obtained in any
individual case.” Walters v. Nat. Assn. of Radiation Survivors, 473 U.S. 305,
321 (III) (105 SCt 3180, 87 LE2d 220) (1985). And as Mathews itself notes,
“procedural due process rules are shaped by the risk of error inherent in the
truthfinding process as applied to the generality of cases, not the rare
exceptions.” 424 U.S. at 345 (III) (D). See also Santosky v. Kramer, 455 U.S.
745, 757 (II) (102 SCt 1388, 71 LE2d 599) (1982) (rejecting case-by-case
21
determination of most procedural due process rules, distinguishing the right to
court-appointed counsel in parental rights termination proceedings).
Nevertheless, “‘due process,’ unlike some legal rules, is not a technical
conception with a fixed content unrelated to time, place and circumstances. Due
process is flexible and calls for such procedural protections as the particular
situation demands.” Mathews, 424 U.S. at 334 (III) (A) (citations and
punctuation omitted). See also Miller v. Deal, 295 Ga. 504, 510 (2) (2014).
“[N]ot all situations calling for procedural safeguards call for the same kind of
procedure.” Morrissey v. Brewer, 408 U.S. 471, 481 (II) (92 SCt 2593, 33 LE2d
484) (1972). See also Roberts v. Scroggy, 278 Ga. 25, 26 (597 SE2d 835)
(2004).
Keeping these principles in mind, we proceed to apply the Mathews test
to the case now before us. Because we already have discussed the nature of the
liberty interest, weighing that interest as we consider the first factor is a
relatively straightforward task. We conclude that the liberty interests affected
by classification as a sexually dangerous predator are substantial. In the first
place, the stigma that follows such a classification — as well as the broad
employment restriction imposed uniquely on sexually dangerous predators, see
22
OCGA § 42-1-15 (c) (2) — undoubtedly may have a serious “adverse impact on
an individual’s ability to live in a community and obtain or maintain
employment.”19 People v. David W., 733 NE2d 206, 211 (II) (N.Y. 2000). See
also Noble v. Bd. of Parole & Post-Prison Supervision, 964 P2d 990, 996 (Or.
1998). Moreover, the requirement of electronic monitoring and tracking for life
implicates weighty liberty interests. Cf. United States v. Jones, ___ U. S. ___
(132 SCt 945, 181 LE2d 911) (2012). That the electronic monitoring and
tracking is accomplished by way of a device physically affixed to the person of
a sexually dangerous predator also adds, we think, to the weight of the liberty
interest at stake. Cf. Missouri v. McNeely, ___ U. S. ___, ___ (II) (A) (133 SCt
1552, 185 LE2d 696) (2013) (in Fourth Amendment context, “invasion of
bodily integrity implicates an individual’s most personal and deep-rooted
expectations of privacy”) (punctuation omitted).
19
That stigma alone is not enough to show a liberty interest does not mean that it
cannot be attributed weight in the weighing of the private interests. See Paul, 424 U.S. at
709 (II) (B) (“The stigma resulting from the defamatory character of the posting was
doubtless an important factor in evaluating the extent of harm worked by that act, but we do
not think that such defamation, standing alone, deprived Constantineau of any liberty
protected by the procedural guarantees of the Fourteenth Amendment.” (Discussing
Wisconsin v. Constantineau, 400 U.S. 433 (91 SCt 507, 27 LE2d 515) (1971); punctuation
omitted)).
23
As for the second Mathews factor, the danger of an erroneous risk
classification is, we think, “substantially more significant” in the absence of a
hearing either before the Board or the superior court. State v. Germane, 971 A2d
555, 580 (I) (A) (2) (R.I. 2009). See also Noble, 964 P2d at 996. This is not the
sort of case, like Wolff v. McDonnell, 418 U.S. 539 (94 SCt 2963, 41 LE2d
935) (1974), and Greenholtz, in which “providing additional process creates
security risks or provides a negligible decrease to the risk of error, [and] the
[Supreme] Court is less willing to afford additional process.” Meza v.
Livingston, 607 F3d 392, 408 (III) (A) (5th Cir. 2010). See also Wolff, 418 U.S.
at 560 (IV) (“one cannot automatically apply procedural rules designed for free
citizens in an open society, or for parolees or probationers under only limited
restraints, to the very different situation presented by a disciplinary proceeding
in a state prison”); Shoats v. Horn, 213 F3d 140 (3rd Cir. 2000) (the sole case on
which the trial court relied, involving administrative confinement of a prisoner).
Instead, this case is more like those that require an evidentiary hearing with
confrontation and cross-examination of witnesses (unless there is a finding of
good cause not to permit such confrontation and cross-examination), such as
Vitek, 445 U.S. at 494-495 (IV), where deprivation of the liberty interest led to
24
stigmatizing and physically invasive consequences to a prisoner, and Morrissey
v. Brewer, 408 U.S. 471, 487-489 (III) (b) (92 SCt 2593, 33 LE2d 484) (1972)
(parole revocation), where the deprivation of liberty caused certain, immediate
adverse consequences to a parolee. Meza, 607 F3d at 408 (III) (A). See also
Roberts, 278 Ga. at 25-26 (reviewing Morrissey). As one not confined by prison
walls, yet subject to the opprobrium of a classification as a sexually dangerous
predator, a broad restriction of the places in which he might become employed,
and a lifetime of electronic monitoring and tracking accomplished by the
affixing of a device to his body (for which he has to pay), Gregory ought to be
entitled to more process than prison inmates who do not suffer deprivations of
liberty beyond their imprisonment itself that are at once stigmatizing and
physically invasive. See Meza, 607 F3d at (III) (B).
This case also is not the sort of case in which an evidentiary hearing is
simply unnecessary because the relevant evidence is largely objective in nature,
presenting few, if any, genuine disputes of fact or credibility. See Noble, 964
P2d at 996; Jamgochian v. N.J. State Parole Bd., 952 A2d 1060, 1075-1076 (IV)
(C) (N.J. 2008). For instance, the potential value of an evidentiary hearing is
minimal when social security disability benefits are discontinued, as such a
25
decision will turn, in most cases, on routine, standard, and unbiased written
medical reports that ordinarily do not involve questionable credibility and
veracity even if there is professional disagreement with the conclusions. See
Mathews, 424 U.S. at 344 (III) (D). Such medical experts are likely to be able
to communicate more effectively through written documents than lay witnesses,
and medical conclusions often are supported by objective data uncovered by
clinical and laboratory tests and information typically more amenable to written
than to oral presentation. See id. at 345 (III) (D). On the other hand, the medical
nature of an inquiry does not justify the denial of an evidentiary hearing when
the inquiry depends on the meaning of facts that must be interpreted by expert
psychiatrists and psychologists. “It is precisely the subtleties and nuances of
psychiatric diagnoses that justify the requirement of adversary hearings.” Vitek,
445 U.S. at 495 (IV) (A). See also Martin v. Barrett, 279 Ga. 593, 595 (619
SE2d 656) (2005) (“We understand that psychiatry is an imprecise and
imperfect science at best.” (Citation omitted)). This seems especially true when
psychiatric or psychological evidence purports to predict the likelihood that
someone will commit additional crimes in the future.
26
In this case, for instance, the record contains extensive psychological,
psychiatric, and psychosexual records, reports, evaluations, and prognoses. The
record also includes documentary evidence that memorializes divergent
accounts of Gregory’s prior offenses (particularly the 2012 incident involving
indecent exposure), as well as letters from lay witnesses. Considering the record
in this case, it is apparent that much of the evidence relevant to a classification
as a sexually dangerous predator tends to be subjective in nature, and that
evidence often may present meaningful factual and credibility disputes. Without
an evidentiary hearing to assess that evidence and resolve these disputes, the
danger of an erroneous risk classification is substantial.
About the third Mathews factor, the Board asserts that a hearing in every
case involving a classification as a sexually dangerous predator would be very
costly, both in terms of time and resources. Other courts have decided, however,
that the fiscal and administrative burdens of a hearing on the likelihood of a
sexual offender committing additional crimes are not significant enough to
justify the refusal of such a hearing. See Germane, 971 A2d at 582 (I) (A) (3);
Noble, 964 P2d at 996-997. In addition, we note that OCGA § 42-1-14 (c)
already provides that a superior court may hold a hearing on the question of
27
classification in any case in which the court sees fit to do so, without limitation,
suggesting that the General Assembly did not consider the cost and burden of
such hearings to be a concern that outweighs all others. Finally, we note that the
Board has failed to come forward with record evidence to show that a hearing
in every case of a classification as a sexually dangerous predator would, in fact,
be prohibitively costly.
Considering the three Mathews factors, we conclude that due process
demands that an evidentiary hearing be afforded upon request to sexual
offenders classified as sexually dangerous predators. We add, however, that we
see no reason why an evidentiary hearing would be required in both
administrative and judicial proceedings. See Germane, 971 A2d at 579 (I) (A)
(2) (a); Noble, 964 P2d at 997. As noted, OCGA § 42-1-14 (c) already provides
that “[t]he court may hold a hearing to determine the issue of classification.”
“Unlike a substantive due process claim, a constitutional violation of procedural
due process is not complete unless and until the State fails to provide due
process.” Atlanta City School Dist. v. Dowling, 266 Ga. 217, 218 (466 SE2d
588) (1996) (punctuation omitted) (citing Zinermon v. Burch, 494 U.S. 113,
126 (110 SCt 975, 108 LE2d 100) (1990)). When the State does provide a
28
hearing at some point in the course of administrative or judicial proceedings, the
failure to hold a hearing at an earlier point in the proceedings generally becomes
moot or is considered cured. See Atlanta City School Dist., 266 Ga. at 218;
Clark v. State, 245 Ga. 629, 641 (5) (266 SE2d 466) (1980); Germane, 971 A2d
at 580 (I) (A) (1) (a). Affording an evidentiary hearing to Gregory in which he
might present evidence favorable to his cause and confront the evidence against
him would satisfy the requirement of due process, regardless of whether the
hearing is held before the Board or the superior court.
In this case, the evidentiary hearing requested by Gregory and required by
due process has never been held. Accordingly, the judgment of the superior
court must be reversed, and the case must be remanded for an evidentiary
hearing at which Gregory will have a meaningful opportunity to present
favorable evidence and to confront the evidence against him, unless there is a
finding of good cause not to permit such confrontation. See Vitek, 445 U.S. at
494-495 (IV); Morrissey, 408 U.S. at 489 (III) (b); Meza, 607 F3d at 411 (III)
(B); Roberts, 278 Ga. at 26. It will be sufficient in this case for the trial court
itself to hold that hearing pursuant to the statutory authorization in OCGA § 42-
1-14 (c). For other cases, the Board may elect to establish procedures by which
29
persons classified as sexually dangerous predators are afforded a meaningful
opportunity in an administrative hearing to present favorable evidence and
confront the evidence against them, if the Board determines that an
administrative hearing would be more efficient and cost-effective than a judicial
hearing.20
Judgment reversed and case remanded with direction. All the Justices
concur.
20
We express no opinion about whether the Board, if it elects to establish procedures
for an administrative hearing, would be required to afford a right of compulsory process to
the sexual offender, whether the offender would have a right to counsel, and what rules of
evidence would apply in such an administrative proceeding.
30