Jane Doe v. Michael DeWine

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, │

│

│

v. > No. 17-3857

│

│

│

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.

No. 17-3857 Doe v. DeWine, et al. Page 9

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).

No. 17-3857 Doe v. DeWine, et al. Page 13

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.