Preview:

Supreme Court
No. 2006-169-C.A.
(PM 01-3300)
State                                                                 :
v.                                                                    :
Thomas Germane.                                                       :
NOTICE:    This  opinion  is  subject  to  formal  revision  before
publication in the Rhode Island Reporter.  Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.




Supreme Court
No. 2006-169-C.A.
(PM 01-3300)
State                                                                                              :
v.                                                                                                 :
Thomas Germane.                                                                                    :
Present:  Goldberg, Acting C.J., Flaherty, Suttell, Robinson, JJ., and Williams, C.J. (ret.).
O P I N I O N
Justice Robinson for the Court.   The appellant, Thomas Germane, appeals from an
October 3, 2005 decision of the Superior Court upholding the determination of the Sex Offender
Board of Review (board of review or board) that the appellant should be classified as a Risk
Level III offender1 for purposes of community notification pursuant to G.L. 1956 chapter 37.1 of
title 11 (entitled “Sexual Offender Registration and Community Notification Act”).
On appeal, Mr. Germane contends that his classification pursuant to the sex offender
registration statute was improper because, in his view, the statute  (both on its face and as
1                                                                                                  A Risk Level III offender is one who is deemed to be at high risk of reoffending.   See
Rhode Island Office of the Attorney General Sex Offender Community Notification Unit, Sexual
Offender Community Notification Guidelines, § 1-13-3.
- 1 -




applied), violates his right to procedural due process, which right is guaranteed by both the
United States and Rhode Island Constitutions.   The appellant further argues that, as applied to
the facts of his case, the statute violates his right to substantive due process.   He also contends
that the statute is not compatible with the principle of separation of powers that is set forth in
article 5 of the Rhode Island Constitution. The appellant further argues that application of the
statute to his case constitutes a violation of the state constitutional prohibition against ex post
facto laws.
In addition to his constitutional contentions, appellant also urges this Court to hold that
the reviewing magistrate in the Superior Court clearly erred when he found that appellant had
failed to show, by a preponderance of the evidence, that the board of review’s classification of
him as a Risk Level III offender was not in compliance with the law.
For the reasons set forth below, it is our view that a portion of chapter 37.1 of title 11, in
some instances, could be irreconcilable with the constitutionally protected right to procedural
due process.   Nevertheless, in view of what actually transpired in this case, it is clear to us that
Mr. Germane himself was not in fact deprived of that, or any other, constitutional right.   In
addition, we can perceive no basis for ruling that the magistrate committed clear error in
upholding the board of review’s risk level classification of appellant.   We therefore affirm the
judgment of the Superior Court.
- 2 -




Facts2 and Travel
I
Underlying Criminal Offenses
This case ultimately stems from appellant’s commission of four first-degree sexual
assaults against three victims (one victim having been the object of two such assaults) in the
Spring of 1998.3
2                                                                                                     The factual background of this case as reflected in the record must be characterized as
murky at best.   On the basis of the rather brief nature of the colloquy on the record that took
place when the criminal charges which eventually gave rise to the instant case were disposed of
through a plea of nolo contendere, it appears that Mr. Germane did not actually plead to any
specific facts beyond his bare admission of the use of force or coercion in the commission of
four sexual assaults.   We have attempted to glean as many pertinent facts as possible from the
materials submitted to the Sex Offender Board of Review and the additional materials submitted
to the Superior Court, which materials constitute the record for judicial review.   This troubling
lack of factual development and the regrettably brief nature of the plea colloquy will be
discussed at greater length infra.
3                                                                                                     We note, however, that the board of review appears to make reference to (and the record
contains a statement to the police concerning) an uncharged sexual assault against a fourth
victim, who appears to have been seventeen years old on May 15, 1998, the date of the alleged
assault.   The record is unclear as to whether Mr. Germane effectively admitted to this uncharged
assault while testifying in the course of a rather confusing exchange with the Assistant Attorney
General on cross-examination during the July 2007 hearing before the Superior Court concerning
his risk level classification.
An undated handwritten note of unknown provenance at the top margin of the statement
made to the police on May 17, 1998 by the woman who was the complainant with respect to the
alleged May 15 assault reads: “Not Charged 404(b).”   We infer that the reference is to Rule
404(b) of the Rhode Island Rules of Evidence.  The propriety of the application of Rule 404(b) to
the victim statement or the consideration of uncharged Rule 404(b) evidence by the board of
review is unclear on the face of the record.  We are troubled by the manifest lack of transparency
surrounding the board of review’s characterization and use (if it did so) of this statement and any
other documents related to the uncharged offense.   Rule 404(b) arises most often in the trial
context, where a trial justice presides as the gatekeeper in determining whether or not a given
piece of potentially prejudicial evidence of other crimes, wrongs, or acts may be admitted under
an exception to the generally exclusionary provisions of Rule 404(b).   See, e.g., State v. Merida,
- 3 -




The first assault, which occurred on April 7, 1998, involved one act of forcible or coerced
vaginal intercourse.   In her statement to the police, the nineteen-year-old victim related how she
had voluntarily entered Mr. Germane’s truck on the evening of the assault.   After he began
driving her to an unknown location, she asked to leave the vehicle, whereupon appellant
withdrew a folding knife and threatened her.   He then drove her to a secluded location in East
Providence, where he sexually assaulted her.
The second assault, which occurred about a week later, on April 15, 1998, also involved
one  act  of  forcible  or  coerced  vaginal  intercourse.    The  forty-eight-year-old  victim  was
cognitively impaired as the result of a childhood injury.4   In a statement to police, she recounted
being forcibly abducted by Mr. Germane, driven to a cemetery in Cranston, and then sexually
assaulted.   She mentioned being struck by appellant, but she gave the police no indication that a
weapon was used during the assault.
The final two assaults, which occurred on May 19, 1998 (and which were committed
against a single victim), involved one act of forcible or coerced fellatio and one count of forcible
or coerced anal intercourse.5   The twenty-four-year-old victim acknowledged to the police that
she was a prostitute and that she had voluntarily entered Mr. Germane’s truck on the evening of
960 A.2d 228, 232 n.8 (R.I. 2008) (“Rule 404(b) is fundamentally a rule of exclusion.”); see also
State v. Jalette, 119 R.I. 614, 624-25, 382 A.2d 526, 531-32 (1978).
4                                                                                                      The officer who initially interviewed the victim shortly after the commission of the crime
noted in his statement that it was not immediately obvious to him that she was suffering from a
brain injury; he stated that he was not aware of her limited mental capacity until he was later
informed of it by her legal guardian.
5                                                                                                      In contrast to the facts pertinent to the May 19, 1998 assaults that were articulated at the
time of Mr. Germane’s nolo contendere plea in January of 2000 (see infra), in her statement to
police on the night when said assaults occurred, the victim alleged that there had been forcible or
coerced vaginal, not anal, intercourse.
- 4 -




the assault.   However, she was then forced by appellant to perform an oral sexual act on him in
the truck, driven to a secluded location in East Providence, and again assaulted in the woods.
She mentioned that she saw a knife on appellant’s belt and feared that he might use it against her,
but she did not allege that he actually threatened her with the knife.
In view of what the prosecutor, at the time of the plea and sentencing proceeding in
January of 2000, would describe as “certain background information and other difficulties with
some of the victims,”6 the state apparently concluded that a plea agreement was preferable to
proceeding to trial with respect to the above-summarized offenses.  Accordingly, in exchange for
a plea of nolo contendere by Mr. Germane, the state offered to recommend a sentence of twenty
years at the Adult Correctional Institutions, six months to serve, nineteen and one-half months
suspended, with probation.
Prior to the plea and sentencing, the magistrate7 presiding over the case received two
psychiatric assessments of Mr. Germane that had been performed by experts in the field of
psychological and sexual evaluation—viz., Dr. Theoharis K. Seghorn and Dr. John P. Wincze.
Doctor Seghorn held five extended evaluation sessions with appellant (each involving two to
three hours of interviews and testing), while Dr. Wincze held six sessions with appellant (said
sessions also involving testing of Mr. Germane and interviews with Mr. Germane and his ex-
wife).  The two assessments were consistent with one another as to most significant matters; they
generally concluded that Mr. Germane was a man of “below average intelligence” and that “he
was not aroused by force or aggression or sadism * * *.”   They further concluded that he is “not
6                                                                                                     The quoted language appears in the transcript of the plea and sentencing proceedings that
took place on January 6, 2000.
7                                                                                                     The magistrate who sentenced Mr. Germane in 2000 also presided over the instant case
when it came before the Superior Court in 2005.
- 5 -




a sexual predator,” but that he would nonetheless benefit from continued psychological treatment
or psychotherapy for the purpose of improving his emotional self-regulation and social skills.
Both doctors independently determined that, in their professional opinion, Mr. Germane was at a
low risk of re-offense.
On January 6, 2000, appellant pled nolo contendere to four counts of first-degree sexual
assault.   At that proceeding, appellant admitted that, had the cases proceeded to trial, the state
could have proven beyond a reasonable doubt that, over the course of approximately two months,
he had committed four acts of sexual assault against three women by the use of force or coercion.
The Superior Court imposed the agreed-upon sentence; Mr. Germane was given credit for the six
months that he had already served prior to the plea; and he was thereupon released.   Several
years later, at the time of the review by the Superior Court of the board of review’s classification,
the magistrate who conducted that review reflected that, although he did “not vividly recall” his
thinking at the time of sentencing, he believed that he had agreed to the lenient sentence because
“[Mr. Germane is] not a danger to society.”
II
First Classification by the Board of Review of Sexually Violent Predatory Behavior
A sex offender registration statute was first enacted in Rhode Island in 1992 (P.L. 1992,
ch. 196, §1).   In 1996, the General Assembly repealed the original statute, G.L. 1956 chapter 37
of title 11, and enacted the Sexual Offender Registration and Community Notification Act, G.L.
1956 chapter 37.1 of title 11, as enacted by P.L. 1996, ch. 104, §1 (“the statute”).   The new
statute required the following persons to register his or her address with a designated state law
enforcement agency: (1) anyone convicted of an enumerated criminal offense against a minor
victim; (2) anyone convicted of a sexually violent offense; and (3) anyone determined by a
- 6 -




newly created board of review to be a sexually violent predator.   Section 11-37.1-3.   The first
two categories of offenders were required to register annually for ten years after the date of
conviction and to verify their addresses quarterly for the first two years after the date of
conviction.    Section  11-37.1-4.    Those individuals in the third category of offenders were
required to register indefinitely until such time as a court might determine that a particular
individual was no longer a sexually violent predator; offenders in this third category were also
required to register their addresses with the appropriate authorities every ninety days.  Id.
The statute also provided for community notification.   Section 11-37.1-12 mandated the
creation of a “notification advisory council,” the purpose of which was to advise the Attorney
General  concerning  guidelines  and  procedures  that  would  govern  community  notification
pursuant to the statute.   The statute mandated that those guidelines “identify factors relevant to
[the] risk of re-offense” and create a three-tiered classificatory scheme depending on the degree
of that risk.  Section 11-37.1-12(c)(1).  Offenders at greater risk of re-offense would be subject to
more comprehensive community notification than offenders posing a lesser risk.
In 1999 (after the commission of appellant’s offenses, but before the disposition of the
criminal charges against him), chapter 37.1 of title 11 was amended to create a new category of
offenses subject to lifetime registration—viz.,  “aggravated offense[s],” which included most
sexual offenses involving sexual penetration and the use or threat of force.  Section 11-37.1-2(J),
as amended by P.L. 1999, ch. 255, §1.   The revised statute required an aggravated offender to
register as a sexual offender for life and to update his or her address quarterly.   Section 11-37.1-
4(c).
Thus, having pled nolo contendere to several aggravated sexual offenses (viz., the above-
referenced four counts of first-degree sexual assault), under the amended statute Mr. Germane is
- 7 -




required to register annually in person with local law enforcement and to register his address on a
quarterly basis for the rest of his life.  Section 11-37.1-4(c).
Following Mr. Germane’s plea of nolo contendere, the state, acting pursuant to the
requirements of the Rhode Island Sexual Offender Registration and Community Notification
Act, forwarded appellant’s records and information to what was then called the Board of Review
of Sexually Violent Predatory Behavior.8   The board of review was authorized to determine
whether a person convicted of a sexually violent offense was a sexually violent predator.9
Section 11-37.1-6.
The board of review received Mr. Germane’s case on February 9, 2000.   At that time, a
field investigator conducted an interview with him concerning preliminary information about his
background, the crimes to which he had pled nolo contendere, his plans as to where he would
reside and where he would work, and his institutional adjustment.10   The field investigator’s
report was also transmitted to the board of review for reference during the classification process.
In May of 2000, the board of review transmitted a one-and-one-half page report to the
Office of the Attorney General; that report set forth the board’s conclusion that Mr. Germane
was a  “sexually violent predator.”    That conclusion was based upon the board of review’s
8                                                                                                     As a result of legislative revisions of G.L.  1956 chapter  37.1 in  2003, the Board of
Review of Sexually Violent Predatory Behavior has been replaced by the Sex Offender Board of
Review.  Section 11-37.1-6, as amended by P.L. 2003, ch. 162, §1.
9                                                                                                     The 1999 version of the statute defines a sexually violent predator as being a person who
“is possessed of a mental abnormality that affects the emotional or volitional capacity of the
person in a manner that predisposes that person to the commission of criminal sexual acts to a
degree that makes the person a menace to the health and safety of other persons.”   Section 11-
37.1-6(c)(1), as amended by P.L. 1999, ch. 255, §1.
10                                                                                                    This report also reflects some apparent confusion about the factual details of the 1998
assaults.   For example, the interview form recites that there were “3 victims,” but immediately
thereafter it identifies four apparent victims.
- 8 -




determination that he “possesses a personality disorder that makes it likely that he will engage in
sexually violent offenses in the future * * *.”   The board set forth nine factors contributing to its
determination.11
Approximately a year later, in June of 2001, the state filed a petition with the Superior
Court seeking a determination as to whether or not Mr. Germane was a sexually violent predator
as indicated in the board’s report.
There was no further action taken on the case for a number of years, and Mr. Germane
remained an unclassified sexual offender in the interim.
III
Probation Violation
In November of 2003, while the state’s petition was still pending before the Superior
Court, Mr. Germane was arrested in Central Falls for soliciting two young women from a motor
vehicle for an indecent purpose, in violation of G.L. 1956 § 11-34-8.1.
According to the witness statement of one Louise Doe,12 on November 3, 2003, her twin
twenty-five-year-old mentally handicapped daughters returned home from a walk and informed
11                                                                                                       The factors listed by the board of review are as follows:
“•    Use of threats and violence during the offense
“•    Offense was premeditated and calculated
“•    Persistent violent restraint during this offense despite victim resistance
“•    When arrested, offender had ski masks and other paraphernalia indicative of planned
attacks and/or restraint
“•    Developed the relationship with the victims for the primary purpose of victimization
“•    Offender selected and/or targeted a significantly vulnerable victim
“•    Habitual pattern of sexual aggression
“•    He refuses to accept responsibility for the crimes
“•    No documentation of successful participation in sex offender treatment program.”
- 9 -




their father that a man in a truck had tried to “pick them up.”   The twins left together shortly
thereafter to walk to a pharmacy.   Ms. Doe observed a black pick-up truck outside her home, so
she and her husband decided to follow the twins in their own vehicle.   Ms. Doe recorded the
truck’s license plate number for later reference.
She watched the truck pull into the parking lot of a fast-food restaurant adjacent to the
pharmacy.   She recalled seeing a man get out of the truck and speak to her daughters.   By Ms.
Doe’s account, she was hiding in some bushes nearby and overheard the man offer her daughters
$20 to get into his truck.  The two women refused and went into the pharmacy.
Ms. Doe then confronted the man, whom she described as a “tall, white male with a
beard;” at that point, the man returned to the truck and drove away.13   The appellant was later
charged in the District Court with having solicited the two women from a motor vehicle for
indecent purposes, a misdemeanor offense.
The state filed a violation report in the Superior Court for Providence County pursuant to
Rule 32(f) of the Superior Court Rules of Criminal Procedure, alleging that Mr. Germane had
violated the terms and conditions of his probation.
The Superior Court ordered and obtained an evaluation of appellant from Mr. Alan
Feinstein, a clinical psychologist working for the state.    In a letter to the trial justice, Mr.
Feinstein asserted that he was “in full agreement with the findings and opinions of both John
12                                                                                                   We have changed the name of the actual witness to a pseudonym so as to respect her
privacy and that of her family.
13                                                                                                   Mr. Germane matches the description provided by Louise Doe.   Indeed, Mr. Germane
later admitted that he had spoken to Ms. Doe’s daughters.
- 10 -




Wincze, Ph.D., and Thomas Seghorn, Ph.D., in that [he did] not believe that Mr. Germane is a
violent individual or one who is in need of sexual offender treatment.”14
Mr. Feinstein did nevertheless make several recommendations.   First, he recommended
that Mr. Germane continue taking his prescribed antidepressant medication.                               (At the time of the
solicitations in Central Falls, appellant had, without the advice or concurrence of his treating
physician, unilaterally decided to stop taking his prescribed medications.)  Second, Mr. Feinstein
recommended  that  Mr.  Germane  participate  in  both  individual  and  group  therapy.15    Mr.
Feinstein expressed his belief that individual therapy would                                             “help[]                                                                                     [Mr. Germane]  *  *  *
understand the nature and extent of his problems in addition to developing new coping strategies
for when he experiences emotionally difficult times.”  Mr. Feinstein recommended group therapy
to help Mr. Germane “develop[] more appropriate social skills.”
While Mr. Germane was incarcerated before the Superior Court’s ruling on the probation
violation issue, Dr. Wincze visited him in December of  2003 and prepared a psychological
evaluation at the request of Mr. Germane’s attorney.    In addition to having assessed Mr.
Germane prior to his plea in 2000, Dr. Wincze had also seen him in voluntary treatment from the
14                                                                                                       It  will  be  recalled  that  Dr.  Wincze  and  Dr.  Seghorn  had  performed  psychiatric
                                                                                                         assessments of Mr. Germane before he pled nolo contendere and was sentenced in January of
2000.
15                                                                                                       At the time of the Central Falls solicitations, Mr. Germane was experiencing a disruption
in his personal life (viz., the dissolution of a long-term romantic relationship).   The fact that the
probation violation occurred when Mr. Germane was going through an unsettled period in his
personal life is significant because one can infer from the record that similar circumstances
precipitated the several earlier sexual assaults to which he eventually pled nolo contendere.   At
the time when those crimes were committed (1998), Mr. Germane was in the midst of a divorce
from his first wife.   He told both Dr. Seghorn and Dr. Wincze that he sought out the women
involved in the 1998 incidents partly as a result of his sexual frustration and partly under the
assumption that they were prostitutes.
- 11 -




time of his plea until April 2002.   After his meeting with appellant at the Adult Correctional
Institutions in December 2003, Dr. Wincze opined as follows:
“Mr. Germane is a very immature and concrete man who
functions at a below normal level of intelligence.   He is childlike
and ineffectual in problem solving and is especially handicapped
when struggling with upsetting emotions.   In the past, medication
has been effective in moderating his emotions and therapy has
provided structured guidance.    Without medication and without
therapy and faced with unemployment, free time and an emotional
problem,  Mr.  Germane  was  overwhelmed  at  the  time  of  the
[probation  violation].    His  solution  was  impulsive  and  poorly
planned and he ignored the obvious risks involved.
“Mr. Germane would benefit from being reevaluated for
medication and also from again participating in active therapy at
least until he is employed and emotionally stable.    Following
meeting both of these conditions, I would recommend that he
remain in therapy on a maintenance basis throughout the length of
his probation.” (Emphasis in original.)
Mr. Germane admitted having violated the terms of his probation by failing to maintain
good behavior, and on April 11, 2004, the court continued him on his prior sentence on two
conditions:  (1) that he continue to take antidepressant medication for however long it was
prescribed by his treating physician; and (2) that he participate in individual or group counseling
“as deemed appropriate by and under the auspices of a qualified mental health practitioner.”  The
Superior Court specifically determined that Mr. Germane “is not in need of sexual offender
counseling, and same is not ordered.”
The misdemeanor charge with respect to the underlying solicitation incident was later
dismissed in consideration of the violation adjudication and the reluctance on the part of
witnesses to testify.
- 12 -




IV
Second Classification by the Sex Offender Board of Review
On  May  20,  2004,  the  Superior  Court  granted  the  state’s  motion  to  remand  Mr.
Germane’s case to the Sex Offender Board of Review for reconsideration in light of the 2003
amendments to the Sexual Offender Registration and Community Notification Act.16
On March 2, 2005, the board of review issued a one-and-one-half page risk assessment
report concerning Mr. Germane.   Less than a quarter of the report concerned appellant directly;
the other half was a generic description of the risk assessment instrument used to evaluate
appellant’s risk of re-offense.17
Attached to the report was a one-page coding form for a risk assessment instrument
commonly used to evaluate risk of recidivism for sexual offenders—viz., the STATIC-99.18   Mr.
16                                                                                                 This remand was authorized by the then newly enacted § 11-37.1-20, as amended by P.L.
2003, ch. 162, §2, which provided for the remand of cases pending adjudication of sexually
violent predator status; the cases were to be remanded to the Sex Offender Board of Review for
risk level determinations under a revised procedure.
17                                                                                                 It appears that it is the board of review’s standard operating procedure to include such a
generic description of the risk assessment instrument in its risk assessment reports.
18                                                                                                 The board of review’s report described the STATIC-99 risk assessment instrument as
follows:
“The  STATIC-99  is  an  instrument  designed  to  assist  in  the
prediction of sexual and violent recidivism for sexual offenders.
This risk assessment instrument was developed by Hanson and
Thornton (1999) based on follow-up studies from Canada and the
United  Kingdom  with  a  total  sample  size  of                                                  1,301  sexual
offenders.    The STATIC-99 consists of  10 items and produces
estimates of future risk based upon the number of risk factors
present in any one individual.
“* * *.
“The recidivism estimates provided by the STATIC-99 are group
estimates based upon reconvictions and were derived from groups
of individuals with these characteristics.   As such, these estimates
- 13 -




Germane was determined to have two  “individual risk factors” on the STATIC-99, which
translates to a “Moderate-Low” risk of re-offense according to that instrument’s scoring key.
The board of review had access to all of the information, records, and reports previously
available to the Board of Review of Sexually Violent Predatory Behavior,19 including appellant’s
February 9, 2000 interview with a member of the Sex Offender Community Notification Unit.
The board of review did not reinterview Mr. Germane when considering his risk assessment.
The board also considered a 2005 report from Michael Stevens, a therapist at Behavioral
Medicine & Health Associates.   Mr. Germane was participating in group therapy under the aegis
of that organization; in his report, Mr. Stevens described the group as consisting of “individuals
who have sexually assaulted or who have sexually inappropriate behavior.”20
do not directly correspond to the recidivism risk of an individual
offender.   The offender’s risk may be higher or lower than the
probabilities estimated in the STATIC-99 depending on other risk
factors not measured by this instrument.”
19                                                                                                    The documents to which the board of review had access included: the criminal docket
sheet relating to Mr. Germane’s original offenses; various statements to police concerning the
original offenses; police reports and crime scene analyses; the interview form completed in 2000
by the Sex Offender Community Notification Unit; the psychological evaluations performed by
Dr. Seghorn and Dr. Wincze in 1999; Mr. Germane’s criminal history record, dated February 2,
2005, which included the record of his  2003 arrest for soliciting from a motor vehicle for
indecent purposes.
20                                                                                                    Interestingly, the report prepared by Michael Stevens bears the subheading “Summary of
Sexual Offender Specific Treatment.”   It will be recalled that the Superior Court specifically
noted in its 2004 order concerning Mr. Germane’s admitted probation violation that “defendant
is not in need of sexual offender counseling, and same is not ordered.”
It appears from Mr. Stevens’s report that Mr. Germane voluntarily enrolled himself in the
program, albeit with some reluctance; it further appears that he enrolled “at the suggestion of his
attorney.”  Later in the same report, Mr. Stevens noted: “Tom [Germane] participates because he
is required to.                                                                                       * * * He regards his involvement in therapy as coerced and he is quite guarded
around self-disclosures.”
Mr. Stevens further noted in his report that Mr. Germane was “quick to remind [him] that
he was referred to [the] group for ‘social skills’ and not for sexual offending.”   Mr. Stevens
- 14 -




Mr. Stevens made the following notation apropos of Mr. Germane:
“Tom does not make the connection * * * that in the past when he
experienced difficulties or things were not stable he responded in
self-destructive  behaviors  such  as  his  sexually  inappropriate
behavior or isolating himself.                                                                          [He] is also unable to express any
concern  for  others  regarding  his  acting  out  behaviors  and  the
consequences  these  behaviors  have  for  others.    His  lack  of
appreciation on both of these dimensions makes him less prepared
to cope with future problems should they occur.”
However, it is also significant that Mr. Stevens made the following further notation:
“Based  on  two  separate  Risk  Assessment  Measures  which
examined his current life adjustment and participation in treatment
[Mr. Germane] scores at low moderate to low in terms of current
risk.   Factors generally associated with high risk recidivism are
absent for Mr. Germane.  These risk assessments are based only on
information                                                                                             [Mr.  Germane]  has  provided[.]     *   *   *  If  this
information  is  not  accurate[,]  the  risk  findings  would  be
meaningless.”
Mr. Stevens concluded as follows: “[Mr. Germane] is not motivated in treatment and
does not perceive a need to make changes. * * * He must be regarded as in the earliest stages of
treatment  in  which  defensiveness  and  resistance  are  present  at  levels  that  interfere  with
progress.”
proceeded to record that “[o]n several occasions [Mr. Germane] has asked when the social skills
work is going to begin for him.”   In fact, in his 2004 report to the Superior Court, Mr. Feinstein
recommended Mr. Germane to group therapy in order to develop “more appropriate social skills”
and advised as follows: “I do not believe that Mr. Germane * * * is in need of sexual offender
treatment.”  It appears from Mr. Stevens’s report that Mr. Germane was aware of this assessment
and did not, at that time, believe himself to be in need of sex offender specific treatment despite
the subheading of Mr. Stevens’s report.
Mr. Germane’s account is not to the contrary; he testified that, after trying and failing to
secure counseling at various mental health facilities on his own, he contacted his probation
officer for a referral “because [he] just figured they deal with sex offenders * * *.”   He further
testified that the probation officer told him that he “had to go to this guy, Mike Stevens.”   Mr.
Germane recalled that Mr. Stevens “is a sex offender counselor, and he also * * * works on
social skills.”
- 15 -




Upon consideration of the above-described materials, the board of review classified
appellant as an overall Risk Level III.   A Risk Level III classification relates to an offender who
is at high risk to recidivate.   The board’s explanation of the apparent discrepancy between Mr.
Germane’s STATIC-99 score and his ultimate risk level classification was as follows:
“Based on a review of other risk factors in this case, the Board
recommends  that  this  STATIC-99  score  under  represents  Mr.
Germane’s risk at this time.   The other risk factors considered that
led the Board to this conclusion were the following:
“Stable  variables:  Sexual  self-regulation  and  General  self-
regulation;
“Acute variables: Anger/Hostility,                                                                     (SONAR, Hanson & Harris,
2000).”
The board provided no further elaboration, nor was there any explication of these rather cryptic
comments.
Sexual  offender  community  notification  is  currently  governed  by  the  guidelines
promulgated in 2007 by the Rhode Island Parole Board pursuant to § 11-37.1-12.   Section 9.0 of
the guidelines directs that local law enforcement shall provide an “offender fact sheet”21 to any
member of the community likely to encounter appellant.   Local law enforcement is further
required to notify the community of the offender’s presence using a variety of other public
information resources—including news releases, fliers, and advertisements in local newspapers.
As an aggravated offender, appellant will be subject to community notification for life and will
be required to register quarterly with local law enforcement officials.
21                                                                                                     The  “offender fact sheet” sets forth the offender’s name, date of birth, address or
approximate address, physical description, criminal history, and other personal information.
- 16 -




As required by statute, the board of review notified Mr. Germane of his classification and
advised him of his right to appeal that decision to the Superior Court.   Availing himself of the
provisions of  §  11-37.1-13, appellant timely filed an application for judicial review of the
board’s determination.
Some time after appellant filed his application for review but before the first scheduled
hearing in the matter, the magistrate assigned to handle appeals of the board of review’s risk
assessments advised the Office of the Attorney General that the exceedingly brief reports issued
by the board of review, coupled with the STATIC-99 coding forms, constituted an insufficient
record for meaningful judicial review in such cases.22   The magistrate felt that he “would have
some difficulty making a determination of a level of notification based strictly on a risk
assessment tool.”    The Office of the Attorney General thereafter supplemented at least some of
the  board  of  review  reports  then  undergoing  review  before  the  Superior  Court  (including
appellant’s) with additional information elaborating on the basis for the board of review’s risk
level determination.
This one-page supplemental attachment provided a somewhat more complete description
of the materials reviewed by the board of review in making its classification of Mr. Germane; in
the words of that attachment, those materials included  “[the] criminal record  [and] police,
institutional, probation/parole supervision, and treatment information * * *.”     The board of
review also noted a number of “characteristics” specific to appellant’s case that in its judgment
22                                                                                                    We consider as laudable the magistrate’s sensitivity to the need for there to be a sufficient
record for meaningful judicial review to take place.
- 17 -




militated in favor of a higher risk assessment than that indicated by the results of the STATIC-
99.23
V
Superior Court Review24
Before  convening  a  hearing  in  open  court,  the  Superior  Court  magistrate,25  acting
pursuant to § 11-37.1-15, conducted an in camera review of all the materials that formed the
23                                                                                                     As elsewhere, the  “characteristics” that are described as features of the  “current sex
offense” (i.e., the 1998 assaults) (emphasis in original) are as we describe below inconsistent
with various portions of the record before the board of review.
As in the first report issued by the Board of Review of Sexually Violent Predatory
Behavior, the Sex Offender Board of Review noted sexual assaults against four victims.   Mr.
Germane, in fact, pled nolo contendere to four counts of first-degree sexual assault against three
women.   (It appears that the board of review considered the uncharged alleged sexual assault of
May 15, 1998 in preparing its report.)   The supplemental attachment asserts that Mr. Germane
committed “multiple acts against victims in each criminal episode”— although, in fact, only one
victim alleged multiple assaults. The board of review also noted “offenses against particularly
vulnerable victims such as the handicapped”— although, in fact, only one of the 1998 victims
was cognitively impaired.
The board of review also noted Mr. Germane’s “poor commitment to current sex offender
specific treatment”—despite the fact that Mr. Germane was voluntarily participating in sex
offender treatment and despite the fact that the Superior Court had previously opined that he was
not in need of such treatment.
We note that the board of review also cited a number of characteristics which are clearly
supported  by  the  record—including  a                                                                “pattern  of  repetitive  and/or  compulsive  sexually
aggressive behavior, involving separate incidents;” “[o]ffender’s denial of the crimes;” and “the
public nature of his criminal pattern.”
24                                                                                                     When the Superior Court conducts a judicial review of a classification by the board of
review, the state has the initial “burden of going forward, which burden shall be satisfied by the
presentation of a prima facie case that justifies the proposed level of and manner of notification.”
Section 11-37.1-16(a).
The term “prima facie case” in this context has been statutorily defined as meaning that
“(1) [a] validated risk assessment tool has been used to determine the risk of re-offense; [and] (2)
reasonable means have been used to collect the information used in the validated assessment
tool.”  Section 11-37.1-16(b), as amended by P.L. 2003, ch. 162, §1.
- 18 -




basis for the board of review’s determination of Mr. Germane’s risk level and the manner of
community  notification.    At  that  time,  the  magistrate  also  made  the  statutorily  mandated
determination  as  to                                                                                    “whether  and  to  what  extent  the  production  of  witnesses  and  cross
examination  [should] be required or permitted depending on the complexities of the matter
involved, [and] the extent of doubt concerning the correctness of the level, nature and extent of
the notification proposed * * *.”   Section 11-37.1-15(a)(2).   The magistrate also indicated that
appellant would be “permitted to present testimony from witnesses regarding the correctness of
the level, nature and extent of the notification proposed” by the board of review.
The Superior Court magistrate conducted a hearing with respect to Mr. Germane’s status
on July 6, 7, 11, and 12, 2005.   At the outset, Mr. Germane’s attorney moved to strike and
dismiss the board of review’s determination that appellant should be classified as a Risk Level
III offender.   Counsel argued that chapter 37.1 of title 11 is unconstitutional both on its face and
as applied; she further asked the Court to reject the findings and conclusions of the board of
review on the ground that they were entered into in violation of Mr. Germane’s state and federal
constitutional rights.  Specifically, counsel challenged the statute as being violative of appellant’s
right to both procedural and substantive due process and as also being violative of his right to
equal protection.    She further contended that the statute violated the separation of powers
doctrine and was also an unconstitutional ex post facto law.
The magistrate noted that the issue before him was whether or not appellant presented a
danger  to  the  community  and  whether  or  not                                                        “his  actions  and  his  conduct  require  this
community, wherever it may be, to be put on notice of the fact that Mr. Germane is in the
25                                                                                                       It will be recalled that the magistrate who presided over the instant case is the same
magistrate who presided over Mr. Germane’s plea and sentencing proceedings in January of
2000 with respect to the four first-degree sexual assaults that appellant committed in the Spring
of 1998.
- 19 -




community * * * so as to protect the health and safety of the public at large * * *.”     To the
extent that Mr. Germane challenged the registration requirement associated with the sex offender
registration and notification process, the magistrate concluded as follows:
“Mr. Germane pleaded nolo contendere * * * to three sex offenses.
* * * As a condition of his plea, * * * he is required to register as a
sex offender in the community in which he resides.
“* * * To seek to modify the registration aspect of his plea
would require a modification in the sentence that was imposed, and
very well may modify or vacate the plea which he entered.   At the
very minimum, Mr. Germane would have to file a [Super. R. Crim.
P.] 35 motion to modify [or to correct an illegal sentence].”
The magistrate concluded that the illegal sentence issue was not properly before the court, and he
denied “the motion to negotiate or modify the requirement of registration.”   The magistrate also
denied the motion challenging (on various constitutional grounds) both the statute and the board
of review’s determination.  He noted that “the very reason that we are here today [is to] give Mr.
Germane his due process and an opportunity to be heard.”
The state then introduced the STATIC-99 into evidence and indicated that it constituted
the state’s prima facie case.   Mr. Germane’s counsel objected on two grounds.   While conceding
that the STATIC-99 may be a validated risk assessment tool, counsel first argued that the state
had not introduced any evidence showing that it had been “performed * * * by a qualified person
who has been trained in the use of the tool.”   Counsel further argued that whoever used the tool
had considered  “factors that are not part of the factors  *  *  * dictated in the STATIC  99
[manual];” she contended that that person had “bumped up the level with factors that are not part
of the facts [while] ignor[ing] other dynamic factors that should be included.”
The magistrate accepted the STATIC-99 over the just-summarized objections, and he
took “judicial notice of decisions rendered in other jurisdictions that recognize the STATIC 99 as
a valid risk assessment tool.”  The state then rested.
- 20 -




Pursuant to the provisions of § 11-37.1-16(a), the burden then shifted to Mr. Germane to
demonstrate, “by a preponderance of the evidence that the determination [of] either the level of
notification [or] the manner in which it is proposed to be accomplished is not in compliance with
this chapter or the guidelines adopted pursuant to [chapter 37.1].”
The appellant presented the testimony of Carol Ball, Ph.D. (a licensed psychologist
specializing in the treatment and evaluation of sexual offenders) and Alan Feinstein, M.A. (the
supervising  clinical  psychologist  for  the  Department  of  Corrections,  who  had  previously
evaluated Mr. Germane at the time of his probation violation). In addition, Mr. Germane also
testified on his own behalf.
Doctor Ball testified that she had met with Mr. Germane on two occasions during the
Summer of 2007 in order to conduct a clinical diagnosis and evaluation and to perform several
psychological tests.   In addition, Dr. Ball reviewed (1) the reports of prior treatment providers;
(2) the board of review’s STATIC-99 risk assessment; and  (3) numerous law enforcement
records relating to Mr. Germane’s offenses.   She agreed that appellant would score a 2 on the
STATIC-99; but, unlike the board of review, she believed that that score overestimated Mr.
Germane’s risk of re-offense.   She based this conclusion on the fact that appellant had been
“incident-free” between 2000 and 2005.26   She also discussed the limitations of the STATIC-99
as a predictive instrument in individual cases generally.
Mr. Feinstein testified that he continued to believe that appellant presented a low risk to
recidivate; this opinion was  “predicated on  [Mr. Germane’s] receiving what  [Mr. Feinstein]
consider[ed] to be appropriate treatment and monitoring  *  *  *.”    He noted that, when Mr.
26                                                                                                    As for the 2003 probation violation, Dr. Ball noted that “there was no conviction;” and
she said that, for that reason, she had opted not to consider it in her STATIC-99 evaluation of
Mr. Germane.
- 21 -




Germane committed his probation violation in 2003, he was not then in treatment; he added that
“[w]hile he was in treatment, there were no problems.”   He recalled that he had recommended
counseling in 2003 because “Mr. Germane would get himself in trouble when things were not
going well in his personal life;” Mr. Feinstein further opined that “individual counseling would
help [Mr. Germane] towards recognizing and controlling his activities, a means to deal with
those feelings and issues.”   It was his opinion, however, that Mr. Germane’s “risk of reoffending
would be significant were he not receiving any treatment.”
The appellant testified that the 1998 sexual assaults occurred because he was lonely,
depressed, and angry following the dissolution of his first marriage.  Although he maintained that
he  originally  picked  up  the  women  believing them  to  be  prostitutes,  he  admitted  that  he
ultimately forced all three to have sex with him.   He denied that he had used a weapon in the
commission of the crimes, although he acknowledged that he did keep a knife holster in his truck
for work-related reasons.
Mr.  Germane  also  confirmed  that  he  stopped  taking  his  prescribed  antidepressant
medication in 2002 because he no longer felt that doing so was necessary.   During that same
period, he was also in the process of breaking up with his then-girlfriend.    Although he
acknowledged  that  his  behavior  at  the  time  of  the  Central  Falls  incident  in                2003  was
inappropriate, he reiterated that he was simply seeking female companionship and did not intend
to assault the two women.
On  October                                                                                            3,          2005,  the  magistrate  ultimately  affirmed  the  board  of  review’s
classification of appellant as a Risk Level III offender.   The magistrate concluded that Mr.
Germane failed to prove by a preponderance of the evidence that the risk level classification and
proposed manner of community notification were not in compliance with the Sexual Offender
- 22 -




Registration and Community Notification Act or the relevant guidelines adopted pursuant to said
statute.  He further found as follows:
“[A] valid risk assessment tool, Static 99, was used.  Other variable
factors                                                                                             (although  treated  differently  for  score  results)  were
considered by the Board [of Review] and listed in its supplemental
report. * * *   These factors were properly utilized in determining
the [Board of Review’s] recommendation.”
The  magistrate  noted  that                                                                        “defendant  introduced  no  evidence  that  the  extent  of
notification called for by his tier categorization was excessive because of unique aspects of his
case.”                                                                                              (Emphasis in original.)   Rather, he noted, appellant challenged his assessed level of risk
by presenting the reports and testimony of the various mental health professionals that had
evaluated him since 1999.
The magistrate noted that the reports of both Dr. Seghorn and Dr. Wincze’s suggest that
Mr.  Germane  committed  the  1998  sexual  assaults  impulsively  as  the  result  of  unsettled
circumstances in his personal life.   The magistrate further noted that both Dr. Ball and Mr.
Feinstein “appeared to gloss over or ignore the incident in November of 2003;” with respect to
that incident, the magistrate observed that “the conduct was similar to conduct which resulted in
defendant’s  original  conviction.”    He  further  observed  that  the                             2003  probation  violation
“involved two handicapped girls who were strangers,” and he added that these facts resembled
those present in one of his 1998 offenses (also involving an adult, mentally handicapped, female
stranger).   The magistrate opined that Mr. Germane’s more innocuous account of the  2003
incident, as related during the hearing, “was totally lacking in credibility * * *.”
The magistrate concluded that appellant had not met his burden of persuasion, and he
upheld his classification by the board of review as a Risk Level III offender.
Mr. Germane timely filed this appeal from the Superior Court’s judgment.
- 23 -




Standard of Review
I
Constitutional Issues
As we have often noted, “[t]his Court uses the greatest possible caution when reviewing a
constitutional challenge to a statute.”   State v. Faria, 947 A.2d 863, 867 (R.I. 2008) (internal
quotation marks omitted); see also State v. Hall, 940 A.2d 645, 657 (R.I. 2008).   A corollary of
that cautionary principle is that, when we assess a challenge to the constitutionality of a statute,
we begin with the principle “that legislative enactments of the General Assembly are presumed
to  be  valid  and  constitutional.”    Newport  Court  Club  Associates  v.  Town  Council  of
Middletown,  800 A.2d  405,  409  (R.I.  2002)  (internal quotation marks omitted).    One who
challenges the constitutionality of a statute bears the burden of proving beyond a reasonable
doubt  that  the  challenged  statute  violates  either  the  Rhode  Island  or  the  United  States
Constitution.   See Gem Plumbing & Heating Co. v. Rossi, 867 A.2d 796, 808 (R.I. 2005); see
also Cherenzia v. Lynch, 847 A.2d 818, 822 (R.I. 2004).
Furthermore, a “trial justice’s findings on mixed questions of law and fact are generally
entitled to the same deference as the justice's findings of fact.”   Cummings v. Shorey, 761 A.2d
680, 684 (R.I. 2000) (internal quotation marks omitted) (citing Hawkins v. Town of Foster, 708
A.2d                                                                                                   178,   182   (R.I.   1998)).  But,  when  those  mixed  questions  of  law  and  fact  impact
constitutional matters, we review the findings de novo, pursuant to the principles set forth in
Ornelas v. United States, 517 U.S. 690 (1996); see Cummings, 761 A.2d at 684 (applying the
Ornelas standard in a civil case).
- 24 -




II
Findings of Fact in a Nonjury Civil Proceeding
We review with deference the factual findings made by a trial justice in a nonjury case.
See,  e.g.,  Manchester  v.  Pereira,                                                                     926  A.2d  1005,   1011  (R.I.   2007)   (“This  Court  views
deferentially the factual findings of a trial justice sitting in a nonjury case.”). In accordance with
that principle, we “will not disturb the findings of a trial justice sitting without a jury unless such
findings are clearly erroneous or unless the trial justice misconceived or overlooked material
evidence or unless the decision fails to do substantial justice between the parties.” Macera v.
Cerra, 789 A.2d 890, 892-93 (R.I. 2002) (internal quotation marks omitted).   If it becomes clear
to us that “the record indicates that competent evidence supports the trial justice's findings, we
shall not substitute our view of the evidence for [the trial justice’s] even though a contrary
conclusion could have been reached.” Tim Hennigan Co. v. Anthony A. Nunes, Inc., 437 A.2d
1355, 1357 (R.I. 1981).
III
Statutory Interpretation
This Court reviews questions of statutory interpretation in a de novo manner.   Rison v.
Air Filter Systems, Inc., 707 A.2d 675, 678 (R.I. 1998).  With respect to that interpretive task we
have said:  “When interpreting a statute, our ultimate goal is to give effect to the General
Assembly's intent. * * * The best evidence of such intent can be found in the plain language used
in the statute. Thus, a clear and unambiguous statute will be literally construed.”   Martone v.
Johnston School Committee, 824 A.2d 426, 431 (R.I. 2003); see also State v. Santos, 870 A.2d
1029, 1032 (R.I. 2005); State v. Grayhurst, 852 A.2d 491, 516 (R.I. 2004).   “It is well settled that
when the language of a statute is clear and unambiguous, this Court must interpret the statute
- 25 -




literally and must give the words of the statute their plain and ordinary meanings.”   State v.
DiCicco, 707 A.2d 251, 253 (R.I. 1998) (internal quotation marks omitted).
Analysis
I
Due Process Claims
Both the state and federal constitutions provide that no person shall be deprived of “life,
liberty, or property * * * without due process of law.”   U.S. Const. Amend. XIV; R.I. Const. art.
1, sec. 2.                                                                                           As the United States Supreme Court has explained: “[T]he Due Process Clause
provides that certain substantive rights—life, liberty, and property—cannot be deprived except
pursuant to constitutionally adequate procedures.   The categories of substance and procedure are
distinct.”    Cleveland Board  of  Education  v.  Loudermill,                                        470  U.S.  532,  541  (1985).    Mr.
Germane’s arguments raise issues concerning both procedural and substantive due process rights
under the federal and state constitutions.
The guarantee of procedural due process assures that there will be fair and adequate legal
proceedings, while substantive due process acts as a bar against “certain arbitrary, wrongful
government actions ‘regardless of the fairness of the procedures used to implement them.’”  L.A.
Ray Realty v. Town Council of Cumberland, 698 A.2d 202, 210 (R.I. 1997) (quoting Zinermon
v. Burch, 494 U.S. 113, 125 (1990)).   We shall now proceed to address each of appellant’s due
process contentions in turn.
A
Procedural Due Process
Mr. Germane attacks the proceedings before the board of review on the ground that he
“was given no process whatsoever: no notice and no hearing.”   While he acknowledges that he
- 26 -




was given the opportunity to present evidence before the Superior Court in the context of its
judicial review of the board of review’s risk level assessment, he contends that the allocation of
the burden of persuasion at that hearing deprived him of due process under the law.
In cases involving procedural due process concerns, we have previously employed the
three-part test articulated by the United States Supreme Court in Mathews v. Eldridge, 424 U.S.
319, 335 (1976).  See, e.g., City of Pawtucket v. Pimental, 960 A.2d 981, 988 (R.I. 2008).  Under
the test set forth in Mathews, three factors are to be considered in determining whether a
procedure violates due process:
“First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional  or  substitute  procedural  safeguards;  and  finally,  the
Government's interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.”  Mathews, 424 U.S. at 335.
1.                                                                                                    The Private Interest Affected by the Government Action
Proceeding in accordance with the analytic approach outlined in Mathews, as a first step
we  must  ascertain  the  nature  of  the  private  interest  implicated  by  the  Sexual  Offender
Registration and Community Notification Act.
In 1994, Congress enacted 42 U.S.C. § 14071, which conditioned state access to certain
federal funds on the states’ adoption of sexual offender and community notification programs.
Within a few years, every state had created such a program, although the features of the various
schemes varied significantly from state to state.   In many states, the requirement of registration
and community notification is based exclusively on the fact of a previous conviction of one of
certain enumerated offenses.   See, e.g., Conn. Gen. Stat. §§ 54-251, 54-252, 54-254 (2001); Fla.
Stat. § 943.0435 (2007); Mich. Comp. Laws § 28.721a (2003).   The United States Supreme
- 27 -




Court has upheld these types of sex offender registration statutes against due process challenges
on the ground that “the [sex offender] registry requirement [is] based on the fact of previous
conviction, not the fact of current dangerousness.”   Connecticut Department of Public Safety v.
Doe, 538 U.S. 1, 4 (2003).   In upholding the Connecticut sex offender registration statute, the
Supreme Court made particular note of the fact that “the public registry explicitly states that
officials have not determined that any registrant is currently dangerous.”  Id.27
A minority of states, including Rhode Island, have adopted  “two tier” sex offender
registration programs.  Under a two-tier approach, an individual offender’s risk level designation
does not turn on criminal conviction alone.   In an ancillary civil or administrative proceeding,
facts other than conviction are used to assess the risk of future dangerousness, and this risk level
determination then dictates the scope of community notification.28
Several of our sister state courts have had the opportunity to consider the due process
implications of such “two-tier” schemes, and most (if not all) have concluded that a “liberty
interest is at stake whenever a sex offender risk assessment is conducted.”   Brummer v. Iowa
27                                                                                                      In contrast, the Rhode Island Parole Board & Sex Offender Community Notification Unit
website makes the following statement with respect to Risk Level III sexual offenders: “The
Board and/or the Court have determined that this individual is at a high risk to re-offend and that
the degree of dangerousness posed to the public is such that a public safety interest is served by
the providing information below to the public availability of notification information [sic].”
28                                                                                                      Under the “two tier” approach, the first tier is the triggering criminal conviction.   At the
second tier, “the recidivism risk levels of offenders are assessed on the basis of specified criteria
during a hearing before a court or a specially constituted board, with due process rights afforded
to the offender.   The evaluative outcome determines the extent, method, and duration of public
notification experienced by offenders.”   Wayne A. Logan, Liberty Interests in the Preventive
State: Procedural Due Process and Sex Offender Community Notification Laws, 89 J. Crim. L. &
Criminology 1167, 1175 (1999).   According to the federal guidelines concerning sexual offender
registration laws, a two-tier system employing  “particularized risk assessments  *  *  * with
differing degrees of information release[d] based on the degree of risk” is “consistent with the
requirements of the                                                                                     [federal] Act                                                                                   *  *  *.”    Megan’s Law; Final Guidelines for the Jacob
Wetterling  Crimes  Against  Children  and  Sexually  Violent  Offender  Registration  Act,  as
amended, 64 Fed. Reg. 572, 582 (1999).
- 28 -




Department of Corrections, 661 N.W.2d 167, 175 (Iowa 2003); see, e.g., State v. Samples, 198
P.3d  803,  808 (Mont.  2008)  (holding that there is a liberty interest at stake when a sexual
offender is designated as a particular risk level); Doe v. Poritz, 662 A.2d 367, 417 (N.J. 1995)
(same); Noble v. Board of Parole and Post-Prison Supervision, 964 P.2d 990, 995-96 (Or. 1998)
(concluding that the determination that a person is a predatory sex offender implicates a liberty
interest when an agency gathers and synthesizes evidence in making such a determination);
Commonwealth v. Williams, 733 A.2d 593, 607 (Pa. 1999) (holding that separate proceedings to
determine whether a convicted sex offender is a sexually violent predator for purposes of
registration and community notification implicates a protected liberty interest); State v. Briggs,
199 P.3d 935, 945 (Utah 2008) (stating that “the statutorily mandated designation of ‘currently
dangerous’ changes the legal status of listed offenders”); cf. Doe v. Attorney General, 686
N.E.2d 1007, 1012 (Mass. 1997) (holding that an offender subject to an automatic registration
requ

Download 06-169.pdf

Rhode Island Law