THE SUPREME COURT

OF THE UNITED STATES

Revised 9-10-03

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No. 2003-328

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William DeNolf, Petitioner

Olympus State University, Respondent

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On Writ of Certiorari to the

United States Circuit Court of Appeals

Seventeenth Circuit

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ORDER OF THE COURT ON SUBMISSION

The petition for writ of certiorari to the United States Court of Appeals for the Seventeenth Circuit is granted for consideration of the following questions presented:

IT IS THEREFORE ORDERED that counsel appear before the Supreme Court to present oral argument on the following issues:

(1) Whether a convicted sex offender has a constitutional right to privacy regarding the dissemination of information regarding that conviction;

and,

(2) Whether the actions of the University deprive the petitioner of due process of the law as guaranteed by United States Constitution.

U. S. Circuit Court of Appeals

Seventeenth Circuit

William DeNolf, Plaintiff-Appellant

v.

Olympus State University, Defendant-Appellee

No.CR-01-59-2

DeNolf

v.

Olympus State University

Defendant-Appellee

OPINION

Opinion by Judge Shanni Smith

    with Judge Allison Vowles concurring

Dissent by Judge Alyne Butland

Argued and Submitted

August 5, 2003

Decided

August 28, 2003

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OPINION

Smith, Circuit Court Judge:

               Petitioner, William DeNolf, is a student currently registered full time at Olympus State University.  Yet, Mr. DeNolf has not taken a traditional route to higher education. DeNolf was involved in an incident following his high school graduation which derailed his college plans until today.  At a graduation party, DeNolf, under the influence of an illegal substance himself, placed the drug Rohypnol, generically called flunitrazepam, into a drink of a sixteen year old high school classmate.  After the woman lost consciousness, petitioner took her to an unoccupied bedroom in the house and proceeded to engage in sodomy and sexual intercourse with the victim.

               As a result, he was charged with first degree rape (Olympus G.L. 180, § 59), drugging a person for sexual intercourse (Olympus G.L. 272 § 3) and committing unnatural and lascivious acts with a minor (Olympus G.L. 272 § 35).  DeNolf agreed to a plea agreement with the state.  Owing to his complete lack of any prior criminal history as well as his young age, he pled guilty to the charge of  committing unnatural and lascivious acts, while the other charges were dropped.  DeNolf was sentenced to four years in prison.  He has always admitted his wrongdoing in the matter and has expressed great remorse for his actions.  Additionally, DeNolf has completed a drug abuse treatment program, and while in prison, found his religious calling.  He began counseling other inmates about confronting substance abuse problems while in prison and has volunteered to assist in other programs upon his release. With good behavior factored in, DeNolf was released after serving two and one half years.  One of the conditions of his release stipulated that DeNolf must be employed or enrolled in a college or university full-time until such time as he would have completed his full sentence.  In an attempt to resume his life, DeNolf enrolled at Olympus State University in September of 2002.

On October 11, 2000, Congress passed Public Law 106-386 § 1601, otherwise know as the Campus Sex Crimes Prevention Act. It was signed into law by the President two days later. This law requires sex offenders, when they register with the state, to indicate whether and where they are enrolled, employed, or volunteering on a college campus. By September 1, 2003, states must share that information with the relevant colleges, and the colleges must tell students, faculty members, and administrators where information on registered sex offenders can be obtained. The law also includes a provision amending the Family Educational Rights and Privacy Act of 1974 (“FERPA” 20 U.S.C. § 1232g) to give colleges the right to publish the registry information without getting prior consent from the named students.

               While colleges wait for states to report to them, many have struggled with how they will present the information. The law requires only that colleges notify the public in some way that the updated registry of sex offenders exists, and that they make the registry available for perusal. Most colleges have chosen to place printed copies of the registry in the campus police department and make its existence known either through the college's Web site or by mailing out pamphlets that direct students and others to its location.

               Olympus State University, however, has gone a step further, making a place on its Web site for a list of sex offenders who work or are enrolled at the campus.  At present, DeNolf is the only name listed.  The listing includes a photograph of the petitioner as well as all registry information including such personal data as home and work addresses, date of birth, height, weight, hair and eye color, and a description of the offence for which DeNolf pled guilty.  The University has also stated its intent, beginning with the Spring semester of 2004, to send individual notices to each student enrolled in classes with petitioner, informing them of his status and urging them to exercise caution on campus and in all campus activities.

Upon being informed that his name had been placed on the website, Mr. DeNolf brought suit in the U.S. District Court for Olympus alleging that the notification provided for by the University violated his procedural and substantive due process rights under the United States Constitution. The District Court dismissed his case prior to the conduct of discovery on a motion for summary judgment. This appeal we consider today.

The essence of our decision is that the Constitution does not prevent society from attempting to protect itself from convicted sex offenders, so long as the means of protection are reasonably designed for that purpose. It is apparent that the community notification provided for in these laws, given its remedial purpose, rationality, and limited scope, is not constitutionally vulnerable because of its inevitable impact on offenders; that despite the possible severity of that impact, sex offenders' loss of anonymity is no constitutional bar to society's attempt at self-defense. The laws at issue here are not retributive laws, but laws designed to give people a chance to protect themselves and their children. This is surely an interest of the highest order. The choice the Legislature made was difficult, for at stake was the continued apparently normal lifestyle of previously-convicted sex offenders, some of whom were doing no harm and very well might never do any harm, as weighed against the potential molestation, rape, or murder by others of women and children because they simply did not know of the presence of such a person and therefore did not take the common-sense steps that might prevent such an occurrence. The Legislature chose to risk unfairness to the previously-convicted offenders rather than unfairness to the women and children who might suffer because of their ignorance. The evidence considered by the legislature regarding the danger of sexual assault on college campuses was overwhelming. While one in eight men will be sexually assaulted (and 99.9% of that predation occurs by other men), one in three women will be raped in their life. Women are more likely to be raped during their high school and college years than at any other time in their lives. 500,000 women are raped every year. As the senate hearings into the Violence Against Women Act point out, 50% of all women raped drop out of college or leave the job they were working at for at least 6 months to 1 year after the attack. The decision of the university to opt for more rather than less disclosure, on balance, was not a difficult choice to make and does not implicate any recognized liberty interest.

With respect to the privacy rights claim, petitioner has failed to demonstrate the existence of a legitimate privacy interest in preventing compilation and dissemination of truthful information that is already, albeit less conveniently, a matter of public record. Many courts have rejected similar privacy concerns and we see no reason to take issue with these rulings. See Doe v. Kelley 961 F. Supp. 1105 (1997) (upholding Michigan’s distribution of similar personal information); Doe v. Poritz 662 A. 2d 367 (1995) (upholding New Jersey’s upholding registration requirements for previously convicted offenders); Paul P. v. Farmer 227 F. 3d. 98 (2000) (upholding the public dissemination of home addresses against a privacy claim).

Further, the Supreme Court has never held that disclosure of personal information, even information that is embarrassing to an individual, is protected under the right of privacy. In Paul v. Davis, 424 U.S. 693 (1976), the Court held that mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest. In the last term, the Supreme Court has upheld disclosure provisions that include an internet registry web site. Connecticut Department of Public Safety v. Doe 123 S. Ct. 1160 (2003).

Although the Campus Sex Crimes Prevention Act does not violate plaintiffs right to privacy under the Fourteenth Amendment, certain aspects of the law do implicate privacy interests. The government’s strong interest in public disclosure, however, substantially outweighs plaintiff’s interest in privacy.

The petitioner’s due process claims are similarly found wanting. The state of Olympus has an elaborate statute (see Appendix A) that establishes a three- tiered tracking system. The system varies considerably based upon the level of dangerousness of the offender. The statute provides for considerable information about the most serious sexual predators, yet requires no community notification for minor offenders. Under Olympus law, a convicted sex offender is entitled to a hearing to determine the level of dangerousness posed to the public. DeNolf was never granted a hearing. However, federal law supercedes that issue.

The Campus Sex Crimes Prevention Act (section 1601 of Public Law 106-386) is a federal law enacted on October 28, 2000 that provides for the tracking of convicted, registered sex offenders enrolled as students at institutions of higher education, or working or volunteering on campus. The Act requires sex offenders already required to register in a State to provide notice, as required under State law, of each institution of higher education in that State at which the person is employed, carries on a vocation, or is a student. The Act further requires that state procedures ensure that this registration information is promptly made available to law enforcement agencies with jurisdiction where the institutions of higher education are located and that it is entered into appropriate State records or data systems. These requirements are tied to state eligibility for certain types of federal grant funding and must be implemented through state law. The Act applies to all convicted sex offenders, regardless of the current level of dangerousness of the offender. Accordingly, regardless of the outcome of any state hearing to determine dangerousness, DeNolf would still fall under the federal reporting requirements.

Further, there is nothing a hearing can show that will remove petitioner from the reach of the Act. In cases such as Wisconsin v. Constantineau, 400 U.S. 433 (1971), and Goss v. Lopez, 419 U.S. 565, (1975), the Court 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 the Act. The law's requirements turn on an offender's conviction alone -- a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest.

Finally, the fact that attending college remains a condition of petitioner’s early release does not change the circumstances. The intent of Congress was to apply the Campus Sex Crimes Prevention Act to all convicted sex offenders—regardless of their individualized circumstances. In upholding mandatory participation in a sexual abuse treatment program as a condition of release, the Supreme Court in McKune v. Lile 536 U.S. 24 (2002) held that sex offenders are a serious threat in this Nation. In 1995, an estimated 355,000 rapes and sexual assaults occurred nationwide. When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault. There is no individualized reason to believe that petitioner will re-offend. However, there is every reason to believe that this Act will prevent many such offenses. Considering the staggering numbers presented, Congress is certainly permitted to address this problem.

It is so ordered.

Dissent

Butland, Circuit Court Judge:

The Court today takes a very crabbed view of due process protections. While it is true that the Congress may have intended to include all sex offenders for reporting under the Campus Sex Crimes Prevention Act, the application of the Act today does little to accomplish its purpose. The stated purpose of the Olympus registration is “the protection of the public from … sex offenders…” While there is no statement of purpose contained in the Campus Sex Crimes Prevention Act, it would naturally appear to have a similar focus. However, requiring all convicted sex offenders to be subject to the draconian measures proposed by the respondent is far broader than necessary to accomplish that goal.

Olympus has chosen to focus the limited resources at its disposal on the most dangerous sexual predators. Olympus has also consciously chosen to withhold personal information from the community regarding sex offenders who, following a hearing, have been shown to no longer be a threat to the community. Federal law should not and cannot deprive petitioner of a hearing in this instance. Under Olympus law, all sex offenders are entitled to a hearing before any community notification takes place. While a hearing may seem pointless considering the terms of the federal law, a state is always free to provide greater due process protections for its citizens than the federal government. Olympus has chosen to provide additional protections to persons like petitioner. The federal Constitution is a floor, not a ceiling when it comes to individual rights and freedoms.

The text of the federal law seems to suggest that Congress has considered exactly this type of circumstance. Consider the wording of the Act, “The Act requires sex offenders already required to register in a State to provide notice, as required under State law, of each institution of higher education in that State at which the person is … a student. Clearly, if the various state provisions regarding registration were to be pre-empted by the Act, there would be no need to mention state requirements at all.

Further, Olympus is not alone in providing additional due process protections. See Roe v. Attorney General 750 N. E. 2d. 897 (2001) (requiring individualized hearings as part of due process) and Doe v. Attorney General 715 N.E. 2d. 37 (1999) (finding Massachusetts state registration requirements and notification provisions to be unconstitutional in the absence of an individualized hearing to determine whether there is a present threat.)

In this case, we have a clear example of a state created liberty interest. For example, in Hewitt v. Helms 459 U.S. 460 (1983), the United States Supreme Court held that there exists a state created liberty interests for prisoners to remain in the general population absent a hearing regarding reasons for removal. In E.B. v. Verniero 119 F. 3d. 1077 (1997) the Third Circuit Court of Appeals found that the Due Process Clause requires the state to hold individualized hearings to determine the level of dangerousness (and thus the appropriate tier) and at such a proceeding to shoulder the burden of justifying the classification and notification plan by clear and convincing evidence. See also Artway v. Attorney General 81 F. 3d. 1235 (1996). From these cases, it is apparent that a state created liberty interest may provide for greater due process protections than similar federal laws. Olympus has chosen to provide hearings. Accordingly, DeNolf is entitled to, at a minimum, a hearing to demonstrate that he should fall into Tier I under Olympus law and thus should not be subject to community notification.

The majority places much emphasis on the fact “that mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest.” However, more is at stake here that mere injury to reputation. Petitioner, as a condition of release, is mandated to attend school. His standing in the university community will undoubtedly be adversely impacted by the sweeping Olympus notification plan. It is not a stretch of the imagination to consider that DeNolf may find it difficult to share notes with classmates, join a study group, or have close contact with a faculty advisor. He will be deprived of more than reputation. Petitioner will not receive the education that was intended as part of his early release program. In Paul v. Davis 424 U.S. 693 (1976) the United States Supreme Court, while finding no violation in that case, did point out that only where the damage to reputation is coupled with another interest, such as employment, is procedural due process triggered. This idea of a “stigma plus” has been held to create a due process violation on many occasions. See Fullmer v, Michigan 207 F. Supp. 2d 650 (2002), and Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999) as examples of this standard. To date, no court has considered whether the continuing legal obligations of persons designated as sex offenders and the attendant criminal penalties for failure to comply, are a sufficient “plus” factor to alter the legal status of sex offender registrants in such a way that their constitutionally protected liberty interests are put in peril. It is clear here that we are dealing with more than just reputation. It would be ironic indeed if the state required persons such as petitioner to attend school only to deprive them of a fair chance to benefit from this educational opportunity.

III

The court also gives very little consideration to the very real privacy interests at stake. While the Campus Sex Crimes Prevention Act does include an exception to the Family Educational Rights and Privacy Act of 1974 (“FERPA” 20 U.S.C. § 1232g), the privacy interests are no less real. In United States v. Miami University 294 F. 3d. 797 (2002), the Sixth Circuit Court of Appeals held that the Miami University student newspaper was not entitled to information regarding student disciplinary records. Citing FERPA, the court disallowed access. However, the court did not rely of FERPA alone, pointing out that “ten years before Congress enacted FERPA, the Supreme Court surmised that the First Amendment has a penumbra where privacy is protected from governmental intrusion.” Griswold v. Connecticut 381 U.S. 479 (1965). Accordingly, certain students’ privacy interests may find protection in the constitution. It is hard to imagine that student disciplinary records should receive greater protection than petitioner’s life history. That loss of privacy can have very serious consequences for the community at large. In E.B. v. Verniero 119 F. 3d. 1077 (1997), the Third Circuit commented that vigilante justice occurs “with sufficient frequency and publicity” to justifiably induce fear within the offenders. Yet, vigilante violence is not solely a concern to those convicted of sex crimes. Inaccurate information, wrong addresses, and misidentified individuals have also lead to attacks against completely innocent individuals. The confusion is often the result of erroneous information reported by the state. For example, the Texas sex offender website provides information regarding 20,000 registered offenders, and officials acknowledge the possibility of erroneous information. Before beginning a search on the Texas website, visitors must first read a disclaimer page. Shockingly, a random spot check of ten offenders' files on the Texas website in 1999 revealed that seven files contained errors, ranging from wrong addresses and inaccurate victim information to the reporting of wrong crimes altogether. Vigilantism from these programs has reached a nation-wide level, yet few realize it stems from the notifications within their own backyards. By failing to correct the vast problems plaguing many notification methods, many states, including Olympus, are fueling a fire that needs extinguishing. It certainly does not need to include additional sex offenders that a hearing may determine pose no risk of future dangerousness.

Finally, the majority makes much of the recent United States Supreme Court decision in Connecticut Department of Public Safety v. Doe 123 S. Ct. 1160 (2003). While it is true that the Court did uphold a registration requirement with many of the same features as those challenged today, the two situations remain very different. There was nothing in the Connecticut statute at all regarding individualized hearings. There was nothing in the Connecticut statute stating the purpose of the law being to protect the public based on the dangerousness of the offender. Both situations exist in Olympus. The Olympus statute was narrowly tailored to address the concerns of the community while protecting the rights of the petitioner. To discard those facts in favor of the broad federal mandate does little to serve the needs of the community nor the purpose of the law.

TABLE OF CASES AND AUTHORITIES

1) Artway v. Attorney General 81 F. 3d. 1235 (1996)

2) Connecticut Department of Public Safety v. Doe 123 S. Ct. 1160 (2003)

3) Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999)

4) Doe v. Attorney General 715 N.E. 2d. 37 (1999)

5) Doe v. Kelley 961 F. Supp. 1105 (1997)

6) Doe v. Poritz 662 A. 2d 367 (1995)

7) E.B. v. Verniero 119 F. 3d. 1077 (1997)

8) Fullmer v, Michigan 207 F. Supp. 2d 650 (2002)

9) Goss v. Lopez, 419 U.S. 565, (1975)

10) Griswold v. Connecticut 381 U.S. 479 (1965)

11) Hewitt v. Helms 459 U.S. 460 (1983)

12) McKune v. Lile 536 U.S. 24 (2002)

13) Paul P. v. Farmer 227 F. 3d. 98 (2000)

14) Paul v. Davis, 424 U.S. 693 (1976)

15) Roe v. Attorney General 750 N. E. 2d. 897 (2001)

16) Wisconsin v. Constantineau, 400 U.S. 433 (1971)

17) United States v. Miami University 294 F. 3d. 797 (2002)

The Campus Sex Crimes Prevention Act

Public Law 106-386 § 1601

SEC. 1601. NOTICE REQUIREMENTS FOR SEXUALLY VIOLENT OFFENDERS.

(a) SHORT TITLE- This section may be cited as the 'Campus Sex Crimes Prevention Act'.

(b) NOTICE WITH RESPECT TO INSTITUTIONS OF HIGHER EDUCATION-

(1) IN GENERAL- Section 170101 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14071) is amended by adding at the end the following:

'(j) NOTICE OF ENROLLMENT AT OR EMPLOYMENT BY INSTITUTIONS OF HIGHER EDUCATION-

'(1) NOTICE BY OFFENDERS-

'(A) IN GENERAL- In addition to any other requirements of this section, any person who is required to register in a State shall provide notice as required under State law--

'(i) of each institution of higher education in that State at which the person is employed, carries on a vocation, or is a student; and

'(ii) of each change in enrollment or employment status of such person at an institution of higher education in that State.

'(B) CHANGE IN STATUS- A change in status under subparagraph (A)(ii) shall be reported by the person in the manner provided by State law. State procedures shall ensure that the updated information is promptly made available to a law enforcement agency having jurisdiction where such institution is located and entered into the appropriate State records or data system.

'(2) STATE REPORTING- State procedures shall ensure that the registration information collected under paragraph (1)--

'(A) is promptly made available to a law enforcement agency having jurisdiction where such institution is located; and

'(B) entered into the appropriate State records or data system.

'(3) REQUEST- Nothing in this subsection shall require an educational institution to request such information from any State.'.

(2) EFFECTIVE DATE- The amendment made by this subsection shall take effect 2 years after the date of enactment of this Act.

(1) IN GENERAL- Section 485(f)(1) of the Higher Education Act of 1965 (20 U.S.C. 1092(f)(1)) is amended by adding at the end the following:

'(I) A statement advising the campus community where law enforcement agency information provided by a State under section 170101(j) of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14071(j)), concerning registered sex offenders may be obtained, such as the law enforcement office of the institution, a local law enforcement agency with jurisdiction for the campus, or a computer network address.'.

(2) EFFECTIVE DATE- The amendment made by this subsection shall take effect 2 years after the date of enactment of this Act.

(d) AMENDMENT TO FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT OF 1974- Section 444(b) of the General Education Provisions Act (20 U.S.C. 1232g(b)), also known as the Family Educational Rights and Privacy Act of 1974, is amended by adding at the end the following:

'(7)(A) Nothing in this section may be construed to prohibit an educational institution from disclosing information provided to the institution under section 170101 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14071) concerning registered sex offenders who are required to register under such section.

'(B) The Secretary shall take appropriate steps to notify educational institutions that disclosure of information described in subparagraph (A) is permitted.'.

Appendix A- Olympus Registry Act

The Olympus state legislature hereby finds that: (1) the danger of recidivism posed by sex offenders, especially sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, to be grave and that the protection of the public from these sex offenders is of paramount interest to the government; (2) law enforcement agencies' efforts to protect their communities, conduct investigations and quickly apprehend sex offenders are impaired by the existing lack of information known about sex offenders who live within their jurisdictions and that the lack of information shared with the public may result in the failure of the criminal justice system to identify, investigate, apprehend and prosecute sex offenders; (3) the system of registering sex offenders is a proper exercise of the commonwealth's police powers regulating present and ongoing conduct, which will provide law enforcement with additional information critical to preventing sexual victimization and to resolve incidents involving sexual abuse promptly; (4) in balancing offenders' rights with the interests of public security and safety, the release of information about sex offenders to law enforcement before the opportunity for an individual determination of the sex offender's risk of reoffense is necessary to protect the public safety; (5) registration by sex offenders is necessary in order to permit classification of such offenders on an individualized basis according to their risk of reoffense and degree of dangerousness; (6) the public interest in having current information on certain sex offenders in the hands of local law enforcement officials, including prior to such classification, far outweighs whatever liberty and privacy interests the registration requirements may implicate. Therefore, the commonwealth's policy, which will bring the state into compliance with federal requirements, is to assist local law enforcement agencies' efforts to protect their communities by requiring sex offenders to register and to authorize the release of necessary and relevant information about certain sex offenders to the public as provided in this act.

All persons convicted of a "sexually violent offense" are required to register annually by sending the following information to the state sex offender database: complete name, work address, home address, date of birth, height, weight, eye and hair color, description of convicted offenses, and current photograph. The state sex offender database shall supply this information to local law enforcement in the jurisdiction in which the offender resides.

"Sexually violent offense", indecent assault and battery on a child; indecent assault and battery on a mentally retarded person; rape; rape of a child under 16 with force; assault with intent to commit rape; assault of a child with intent to commit rape; drugging persons for sexual intercourse; unnatural and lascivious acts with a minor; aggravated rape; and any attempt to commit a violation of any of the aforementioned sections or a like violation of the law of another state, the United States or a military, territorial or Indian tribal authority, or any other offense that the sex offender registry board determines to be a sexually violent offense pursuant to the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 42 U.S.C. section 14071.

The guidelines shall provide for three levels of notification depending on the degree of risk of reoffense and the degree of dangerousness posed to the public by the sex offender or for relief from the obligation to register:

(a) Where the board determines that the risk of reoffense is low and the degree of dangerousness posed to the public is not such that a public safety interest is served by public availability, it shall give a level 1 designation to the sex offender. The police shall not disseminate information to the general public identifying the sex offender where the board has classified the individual as a level 1 sex offender.

(b) Where the board determines that the risk of reoffense is moderate and the degree of dangerousness posed to the public is such that a public safety interest is served by public availability of registration information, it shall give a level 2 designation to the sex offender. The public shall have access to the information regarding a level 2 offender.

(c) Where the board determines that the risk of reoffense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination, it shall give a level 3 designation to the sex offender. Neighboring police districts shall share sex offender registration information of level 3 offenders and may inform the residents of their municipality of a sex offender they are likely to encounter who resides in an adjacent city or town. The police or the board shall actively disseminate in such time and manner as such police department or board deems reasonably necessary.

CLASSIFICATION AND HEARING. (1) Upon review of any information useful in assessing the risk of reoffense and the degree of dangerousness posed to the public by the sex offender, including materials described in the board guidelines and any materials submitted by the sex offender, the board shall prepare a recommended classification of each offender. Such recommendation may be made by board staff members upon written approval by one board member; provided, however, that if the sex offender was a juvenile at the time of the offense, written approval must be given by a board member who is a licensed psychologist or psychiatrist with special expertise in the assessment and evaluation of juvenile sex offenders.

Upon receiving registration data, the police department at which the sex offender registered, the sentencing court or by any other means, the board shall promptly notify the sex offender of his right to submit to the board documentary evidence relative to his risk of reoffense and the degree of dangerousness posed to the public and his duty to register. Upon reviewing such evidence, the board shall promptly notify such sex offender of the board's recommended sex offender classification, his duty to register, if any, and his right to petition the board to request an evidentiary hearing to challenge such classification and duty, his right to retain counsel to represent him at such hearing and his right to have counsel appointed for him if he is found to be indigent as determined by the board; provided, however, that such indigent offender may also apply for and the board may grant payment of fees for an expert witness in any case where the board in its classification proceeding intends to rely on the testimony or report of an expert witness prepared specifically for the purposes of the classification proceeding. Such sex offender shall petition the board for such hearing within 20 days of receiving such notice. The board shall conduct such hearing in a reasonable time according to the provisions of subsection (2). The failure timely to petition the board for such hearing shall result in a waiver of such right and the registration requirements, if any, and the board's recommended classification shall become final.

(2) If an offender requests a hearing in accordance with subsection (1), the chair may appoint a member, a panel of three board members or a hearing officer to conduct the hearing, according to the standard rules of adjudicatory procedure or other rules which the board may promulgate, and to determine by a preponderance of evidence such sex offender's duty to register and final classification. The board shall inform offenders requesting a hearing under the provisions of subsection (1) of their right to have counsel appointed if a sex offender is deemed to be indigent as determined by the board. If the sex offender does not so request a hearing, the recommended classification and determination of duty to register shall become the board's final classification and determination and shall not be subject to judicial review.

If the board, in finally giving an offender a level 3 classification, also concludes that such sex offender should be designated a sexually violent predator, the board shall transmit a report to the sentencing court explaining the board's reasons for so recommending, including specific identification of the sexually violent offense committed by such sex offender and the mental abnormality from which he suffers. The report shall not be subject to judicial review. Upon receipt from the board of a report recommending that a sex offender be designated a sexually violent predator, the sentencing court, after giving such sex offender an opportunity to be heard and informing the sex offender of his right to have counsel appointed, if he is deemed to be indigent shall determine, by a preponderance of the evidence, whether such sex offender is a sexually violent predator. An attorney employed or retained by the board may make an appearance, to defend the board's recommendation. The board shall be notified of the determination. A determination that a sex offender should not be designated a sexually violent predator shall not invalidate such sex offender's classification. Where the sentencing court determines that such sex offender is a sexually violent predator, dissemination of the sexually violent predator's registration data shall be in accordance with a level 3 community notification plan; provided, however, that such dissemination shall include such sex offender's designation as a sexually violent predator.